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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: March 19, 2015 SUIT NO. NICN/OW/47/2014 Between The State Exparte Engr. A. O. Mbagwu …… ….. Claimant/Respondent And 1. The Commissioner, Ministry of Agriculture and Natural Resources, Imo State Defendants/Applicants 2. Ministry of Agriculture and Natural Resources, Imo State Representation: J. U. Eze for the Claimant B. N. Iwu (Mrs.), Senior State Counsel, for the Defendants RULING This action was originally commenced at the High court of Imo State by way of an application for an order of mandamus compelling the defendants to perform their statutory duties relating to the withheld entitlements and emoluments of the Claimant herein. The suit was subsequently transferred to this court vide an order of transfer made on the 6th day of March 2014. By a motion on notice of preliminary objection dated the 19th day of November 2014 and filed on the 21st day of November 2014, the applicants herein prays the court for an order dismissing this suit for want of jurisdiction and for such other orders the court may deem fit to make. This motion, which is brought pursuant to Order 11 Rules 1, of the National Industrial Court Rules 2007, Section 2a of the Public Officers’ Protection Act Cap 4 Vol. 14 LFN 2004 and under the inherent jurisdiction of this Honourable court, is supported by a six (6) paragraph affidavit deposed to by one Comfort Onwukugha upon which Counsel placed reliance. The ground for this objection is that this suit is statute barred, incompetent and this Court lacks jurisdiction to entertain same. According to counsel for the applicant, the Claimant commenced this suit by Motion Ex-parte seeking leave of court to apply for a Writ of Mandamus filed on 29/7/2011. Counsel raised the following two (2) issues for determination: 1. Whether this action is competent and whether this Honourable Court has jurisdiction to entertain same. 2. Whether this action is statute barred. Counsel urged the court to resolve issue no 1 in the negative and hold that this suit is incompetent and the Honourable Court lacks jurisdiction to hear same. Counsel referred the Court to a Motion Ex-parte filed on 29/7/2011 and submitted that this suit as constituted is incompetent on the ground that it was commenced after the time prescribed by Section 2(a) of the Public Officers protection Act Cap. 4 Vol. 14 LFN 2004 which provides that any action, prosecution, or proceeding commenced against any person for any act done in the pursuance or execution of any act, law or public duty or authority, shall be brought within three months of the act, neglect or default complained of or in the case of a continuing damage or injury, within three months next after the ceasing thereof. According to Counsel for the applicant, the claimant became aware of the act complained of on 4/10/2007 as contained in paragraphs 15, 16 and 17 of the Statement of Claim and this action was brought on 29/7/2011, four years after the alleged act, neglect and default of the defendants. Refer to paragraphs 15, 16 and 17 of the Statement of Claim. In MADUKOLU & ORS vs. NKEMDILIM (1962) 4 ANLR 587 @ 595, BAIRAMAIN J. stated thus: “Put briefly, a court is competent when 1. It is properly constituted as regards numbers and qualification of the members of the bench, and no member is disqualified for one reason or another, and 2. The subject matter of the case is within jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and 3. The case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.” According to Counsel, in view of Ratios 2 and 3 above, the proper parties are not before the court as the Attorney – General & Commissioner for Justice, Imo State is not joined as a party to the suit and the action was brought after the time prescribed by Section 2(A) of the Public Officers (Protection Act) Supra. Therefore this action is grossly incompetent and the court lacks jurisdiction to entertain same. On issue two, the defendants submit that the suit as constituted is statute-barred on the ground that it was commenced after the time prescribed by section 2(A) of the Public Officers Protection Act Cap 4, Laws of the Federation of Nigeria, 2004 which provides that any action, prosecution, or proceeding commenced against any person for any act done in pursuance or execution or intended execution of any Act, law or any public duty or authority shall be brought within three months of the act, neglect or default complained of or in the case of a continuing damage or injury, within three months next after the ceasing thereof. Section 18(1) of the Interpretation Act, 2004 defines a Public Officer as a member of the Public Service of the Federation or a state within the meaning of the constitution of the Federal Republic of Nigeria, 1999. See ABUBAKAR vs. GOVERNOR OF GOMBE STATE (2002) 17 NWLR (Pt. 797) 533 CA. Also, Public Officers have been held by our apex court to include an artificial person, public officer, public bodies or body of persons, corporate or incorporate, statutory bodies or persons etc. thus, in the Supreme Court case of Ibrahim vs. JSC (1998) 14 NWLR (Pt. 584), IGUH JSC held thus: “It is thus clear to me that the term Public Offer has by law been extended to include a public department and therefore an artificial person, a public office or a public body … I do not think it can be suggested with any degree of seriousness that the Public Officers (Protection) Act…while it protects Public Officers cannot on the same wise protect a public department, and artificial person or a public body, so long as they are sued for an act done in the execution of their public duty…the question may finally be asked whether the Attorney – General or a Permanent Secretary who is duly appointed and sworn into office may not also be referred to as an individual in the context of the obiter dicta in THE OKWALE AND MIKE cases. My straight answer must be in the affirmative… See pages 38 paras. D – F, 44 paras F – H and 45 paras E – G. Similarly, the Court of Appeal held in NWOGWUGWU vs. THE PRESIDENT OF THE FEDERAL REPUBLIC OF NIGERIA (2007) All FWLR (Pt. 358) 1151 @ 1169, thus “The words any person in section 2 of the Public Officers Protection Act Cap. 379, Laws of the Federation of Nigeria, 1990 are not limited to human or to persons sued in their personal names but also includes artificial persons, public bodies or body or persons, corporate or incorporate, statutory bodies of persons”. It is submitted that the defendants in this suit are Public Officers under the ambit of the Public Officers Protection Act. The question therefore is when did the act complained by the claimant occur or when did the cause of action in this suit arise? To determine when a cause of action arose, recourse must be had to the Statement of Facts as relied on by the claimant. This is because a cause of action generally accrues on the date on which the incident giving rise to the cause of action arose. In paragraph 15 of the Statement of Claim, the claimant on resumption of duty on 4.10/2007 became aware that his salaries and emolument s were not paid to his family while he was at the United States of America. It follows therefore that the cause of action arose on 4/10/2007 when the claimant discovered that his salaries and emoluments were not paid to his family. This suit was filed on 29/7/2011, Four (4) years after the alleged default, act or neglect of the defendants. The court in OKENWA vs. MILITARY GOVERNOR IMO STATE (1997) 6 NWLR (Pt. 507) Pg. 154 @ 167 held that in determining the period of limitation, one has to look at the time the cause of action arose and compare it with when the Writ of Summons was filed. This can be done without taking oral evidence from a witness. If the time of the Writ is beyond the period allowed by the limitation law, then the action is statute barred. See also IKURIE vs. EDJERODE (2001) 18 NWLR (Pt. 745) 446 where it was affirmed that it is settled law that it is the plaintiff’s claim that determines the question of the court’s jurisdiction. It is trite that “where a law provides for the bringing of an action in respect of a cause of action accruing to a plaintiff within a prescribed period, proceedings shall not be brought after the time prescribed by the law. Consequently, any action brought in respect of the cause of action outside the prescribed period offends against the provision and does not give rise to a cause of action. In order words, the action is statute barred”. See ADIGU V. AYIRINDE & ORS (1993) 8 NWLR (Pt. 131) pg. 516 @ 535 paras C – E or pg 345 paras A – B. The same court went on to state thus: “The defence provided in Section 2(A) of the Public Officers (Protection) Act is that actions caught by the provision must be commenced within three (3) months next after the cause of action arose. Thus an action for any public duty, alleging neglect or default which is not brought against a public officer within 3 months of the accrual of the cause of action shall not lie as the court, will lack the requisite jurisdiction. See also NWAOGWUGWU vs. PRESIDENT OF FRN (Supra). In view of the above, it is obvious that the claimant’s action is caught up by the provisions of Section 2(A) of the Public Officers (Protection) Act as at July, 2011 when this suit was filed. Counsel urged the Court to hold that this suit is statute-barred and, and to resolve this issue in favour of the applicant. In opposition to the applicants’ application, counsel for the Claimant pointed out that the claimant in this action brought a suit seeking the order of court upon the defendants to pay him his salaries/emoluments and entitlements suppressively held by the defendants. He went on that the defendants through the litigation officer in the Attorney General’s office filed a preliminary objection seeking pre-emptive strike out aimed at scuttling the suit in limine on grounds of statute bar, inter alia. According to counsel, the deponent of the applicants’ affidavit averred that she collected the information so deposed from a source outside his personal knowledge without disclosing reasonable particulars respecting the purported information. Counsel for the Claimant identified a sole issue for determination: “Whether paragraphs 4(a) (b) (c) (d) (e) (f) (g) (h) (i) and (j) of the Affidavit in Support of the Preliminary Objection filed by the defendants dated 21st November 2014 are not incompetent and liable to be struck out”. In arguing the sole issue, counsel for the Claimant submitted that it is trite law that when a person deposes to a belief derived from any source other than his own personal knowledge, the person shall set forth explicitly the facts and circumstances forming the ground of his belief, including reasonable particulars in respect of the informant, the time, place and circumstance of the information. See Section 115(1) (3) and (4) of the Evidence Act 2011 as amended. According to counsel, in the present instance, the said paragraphs 4(a) (b) (c) (d) (e) (f) (g) (h) (i) and (j) were born without fulfillment of the necessary conditions precedent in the application of the law, and therefore incompetent, and liable to be struck out. See Madukolu & Ors vs. Nkemdilim (1962) 1 ALL NLR (Pt. 4) 587; Osakue vs. Federal College of Education Asaba (2010) All FWLR (Pt. 522) 1404. Counsel submitted strongly that the above mentioned paragraphs are incompetent and prayed that they be struck out. See the case of Veepee Industries Ltd. vs. Cocoa Industries Ltd. (2008) All FWLR (Pt. 425) 1667 SC. He went further however that assuming but not conceding that the paragraph 4 of the affidavit backing up the preliminary objection is competent, it is noteworthy to state that the statue of limitation does not and cannot constitute a bar on time to action for salaries/emolument of a worker or for payment of work or contract done. See Oniah vs. Onyia (1989) 1 NWLR (Pt. 99) 514; See also E.M.I.L. vs. M.F.C.T (2011) All FWLR (Pt. 576) 604 at 613 paras. E – H. Counsel urged the Court to discountenance the applicant’s application as incompetent. The applicants filed a reply on points of law wherein counsel submitted that the provisions of Section 2(a) of the Public Officers (Protection) Act Cap. 4 vil. 14 LFN, 2004 is clear as to its application and intent. The section provides that: “Where any action, prosecution, or proceeding commenced against any person for any act done in pursuance or execution of any Act, Law or any public duty or authority, shall be brought within three months of the act, neglect or default complained of or in the case of a continuing damage or injury within 3 months next after the ceasing thereof”. According to counsel, in determining whether or not the suit is limited by statute, it is always necessary to ascertain the exact date on which the cause of action arose. This is because time will start to run for the litigant from the date the cause of action arose. In computing the time, or period of limitation both under the Limitation Law and Public Officers (Protection Act), the Court of Appeal in the case of MUDUN & ORS VS. ADANCHI (2013) LPELR 20774 CA held thus: “in order to determine the period, consideration must be given to the Writ of Summons and Statement of Claim alleging when the wrong was committed and by comparing the date with the date on which the Writ of Summons was filed. This can be done without calling oral evidence from witnesses”. In the instant case, the cause of action arose on the 4th day of October, 2007 when the claimant resumed duty after his 2004/2005 Annual leave and noticed that his salaries/emoluments from March 2006 – June 2007 were not paid to his family as clearly stated in paragraphs 15 and 16 of the claimant’s Statement of Claim. This suit is statute – barred as the suit was instituted on 19/7/2011 which is four years from the time the cause of action arose. It was the submission of Counsel for the applicant that where the law specifically directs the conformity to a mandatory requirement as in section 2(a) of Public Officer (Protection Act), the resultant absence of compliance ought to be fatal. See B. A. S. F. (Nig.) Ltd. vs. Faith Ent. Ltd. (2010) All FWLR (Pt. 518) @ P. 840 esp. 844 ratio 5 p. 862 para E CA. If the respondent is aggrieved by the way and manner his salary was stopped by the applicants, he must seek redress in the court of law (if he so desires) within three months as stipulated by the Act. Where he fails to do so as in this, he cannot be rescued from the grip of limitation law. See Nigerian Ports Authority v. Generalis (1974) 12 SC 81 where the court stated thus: “Having therefore failed to institute this action within three months, it is our humble submission that the appellants are entitled to the defence of limitation of action as provided by the Public Officers Protection Act”. Counsel submitted that this action brought after the prescribed period cannot succeed. See Obiefuna vs. Okoye (1961) 1 ANLR 357. In reaction to the Claimant’s contention that the statute of limitation cannot constitute a bar to actions of salaries/emolument of a worker or for payment of work or contract done, counsel for the applicant submitted that Limitation Law applies to employment cases. He referred to the case of Patrick Nwangwu vs. Governor of Imo State & 3ors. (unreported Suit No: NICN/EN/167/2012) delivered on 12th March, 2014, where this court stated thus: “This court has held that the limitation laws do not apply to labour rights issues especially as to the claims for salary and entitlements/benefits, the truth is that this court had in recent times, had to change that stance in cases other than those relating to salary and benefits given the weight of the Court of Appeal and Supreme Court authorities to the effect that Limitation Laws apply to employment cases as of other cases, all of which are binding on this court”. Counsel went on that the essence of a limitation Law is that the legal right to enforce an action is not a perpetual right but a right generally limited by statute. Where a statute of limitation prescribes a period within which an action should be brought, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. Therefore, a cause of action is statute-barred if legal proceedings cannot be commenced in respect of same because the period laid down by the Limitation law had elapsed. Egbe vs. Adefarasin (1985) 1 NWLR (Pt. 2) 549; Ajayi vs. Adebiyi (2012) 11 NWLR (Pt. 1320) 137. According to counsel, having commenced this action after the expiration of the limitation period, the claimant’s right of action, right of enforcement and right of judicial relief are removed and is left with a bare and empty cause of action which cannot be enforced since the alleged cause of action is statute – barred. Ibrahim vs. JSC (1998) 14 NWLR (Pt. 584) 1; Egbe vs. Adefarasin (Supra); Ajayi vs. Adebiyi (Supra). He submitted that this suit is statute-barred and urged the court to dismiss the suit. Counsel went on that this matter did not start de novo but was transferred to this Court from the High Court of Imo State, counsel for the applicants submitted that assuming but without conceding that the matter started de novo, an order of court remains valid and subsists until set aside by a court of competent jurisdiction. An order of court is not made for fun but to be obeyed. See M. O. Sekoni vs. UTC Nig. PLC (2006) FWLR (Pt. 301) Pg. 1627 paras F – H. According to Counsel for the applicant, Section 6 of Imo State Proceedings Edict 1994 provides that the Attorney – General or a State shall be joined as a defendant in every action brought against the State Government. It is his submission therefore that the non-joinder of the Attorney General of the State in this suit makes the suit incompetent and the court lacks jurisdiction to entertain same. He urged the court to dismiss this suit for being statute-barred and incompetent. Counsel for the Claimant sought and obtained the leave of Court to file a further affidavit and a reply on points of law, considering that new issues had been raised in the applicants’ reply on points of law filed in reaction to the Claimant’s counter affidavit. Counsel for the Claimant pointed out that the defendant/applicant’s reply on points of law to the Claimant’s counter affidavit had relied heavily on the issue of statute bar, citing among others, unreported Suit No: NICN/EN/167/2012 and the Supreme Court case of Ibrahim vs. JSC (1998) 14 NWLR (Pt. 584) 1. Counsel for the Claimant equally placed reliance on the case of Ibrahim vs. JSC. According to counsel, by the rule of stare decisis, the unreported case is subject unto the decision of the apex court of the land. The sole issue for determination raised by Counsel for the Claimant in his reply on points of law is Whether the suit is statute barred as to rob the court of its jurisdiction to entertain the matter. In arguing the sole issue, Counsel submitted that statute of limitation is not without caveat or exceptions. In the cited case of Ibrahim vs. JSC the Supreme Court held inter alia: “The public officers (protection) law is a limitation law and the substance of its section 2(a) is that where any action, prosecution or proceeding is commenced against any person for any act done in pursuance or execution of any law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such law, duty or authority, the action, prosecution or proceeding shall not lie or be instituted unless it is commenced within three months of the act, neglect or default complained of, or in the case of a continuing damage or injury within three months next after the ceasing thereof” (Ibrahim v. JSC (1998) 14 NWLR (pt. 584) 1. @ pg. 31 paras G – H). from the above dictum of the Supreme Court, that limitation law has some exceptions to wit: “Or, in the case of continuing damage or injury, within three months next after the ceasing thereof”. According to counsel, the statute of limitation has tremendous accommodation and respect to principles of continued trespass. It recognizes the inherent injustice that would be if the date begins to run while the victim is still belabouring to escape from the oppressor. The law says three months after hostility has ceased, not even immediately it ceases. By application of the above principle, counsel continued that the salaries/emoluments of the claimant is still being held, upon series of false promises made to the claimant to settle the debt by the A.G and the ministry itself. It is the submission of Counsel that the cause of action will trigger statutory time bar only after three months from the payment of the amount involved. He went on that the denial against the claimant is a matter that is in continuum and until the hostility ceases there can never be statutory time bar, even ad-infinitum. To counsel, it is unfortunate that the learned counsel for the defendants/applicant failed to observe the caveat that attaches to this provision. See the case of Osun State Govt. v.. Dalami (Nig.) Ltd. (2007) All FWLR (P. 365) @ 452 paras A – F. and plethora of other cases. Counsel contended further that the suit is not statue barred and by the authority of plethora of case laws the suit is current, and competent before the court. In an application of this nature the court would want to know two relevant factors thereto: (a) When the cause of action arose; (b) Whether the substantive matter falls under the exceptional rules. It is submitted that ceasure of the salaries and emolument of the claimant falls under doctrine of continuing trespass in so far the said entitlement are continually being withheld by the defendants. In the instant case the defendants had written two consecutive times stating that they were doing something towards the demands on them by the applicants. They have never said they would not pay. As regards when the cause of action arose, Counsel submitted that as the wrongful denial continues it gives rise to an action de die in diem, (so long as it lasts). See the case of Onyia vs. Onyia (1989) 1 NWLR (Pt. 99) 514; Adepoju vs. Oke (1999) 3 NWLR (pt. 594) 154 @ 169 paras. A – B. In the Adepoju’s case his lordship Onu JSC stated the jurisprudence of the law as follows: The Respondent knew at all material times that the members of his family have been building on other people’s land and they continued to do so despite the protest as canvassed by the appellant and therefore the statute of limitation would not apply. In the instant case the defendants know they were withholding the basic salaries and emoluments of the claimant lying critically in the hospital, but continued to do so and watching perhaps when the man will be declared dead and the wards perished. Therefore the statute of limitation can never avail them. See Okito vs. Obioru (2007) All FWLR (Pt. 365) 568 @ 579 paras E – G; See also Morah vs. Okwuayang (1990) 1 NWLR (Pt. 125) 223. According to counsel, for limitation period to commence, there must be a clear case of absence of possession of the property in question by the defendant or adverse party. The defence of limitation only applies when adverse possession is down nec clam, nec vi nec precario. See the case of Ajibona vs. Kolawole (1996) 10 NWLR (Pt. 476) 22; Iso & Ors vs. Eno (1999) 2 NWLR (Pt. 590) 240. Above all, to Counsel, the statute of limitation is not applicable in the following cases: (a) Recovery of land (b) Breaches of contract and (c) Claim for work and labour done See the case of Salako vs. L.E.D.B & Anor. 20 NLR 169; Osun State Govt. vs. Dalami (Nig.) Ltd. (2007) All FWLR (Pt. 365) @ 452 paras A – F; Nig. Ports Authority vs. Construczioni Generali Far sura Coge ar Spa (1974) 1 All NLR 468. In the instant case the plank upon which the case is brought is the denial of the Claimant’s salaries/emolument and entitlement for work done while in the employ of the defendants. Counsel therefore submitted that the doctrine of limitation cannot avail the defendants in the present case. He urged the court to return a negative answer to the issue. Having carefully considered the arguments of counsels in their written address and the processes relevant to this application, one issue presents itself for determination in the application. The issue is: Whether the Claimants’ suit is statute barred? The defendants’ preliminary objection is that the suit is incompetent as it is statute barred. In the affidavit filed in support of this contention, it is deposed that the claimant’s cause of action commenced on 4/10/2007 when he resumed duty after his annual leave and discovered that his salaries and emoluments from March 2006 to June 2007 were not paid to his family. The claimant initiated this action on 29/7/2011 after the time prescribed by law for bringing the action has lapsed. The suit is therefore incompetent and ought to be dismissed. In the counter affidavit filed by the claimant to oppose the application, it is deposed that the claims are in respect of the claimants’ salaries and emoluments as such the suit is not statute barred. The counter affidavit also contain depositions urging this court to strike out the entire paragraph of the defendants affidavit in support of the motion for the reason that the facts deposed in the paragraph did not emanate from the deponents personal knowledge and the deponent did not state the circumstances in which he received the information as prescribed by law. In the defendants Counsel’s written address, it is submitted 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 on 4/10/2007. This suit, having been filed on 29/7/2011, 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 provision 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 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, the facts that the defendants are public officers and they have been sued in this suit in respect of their default in the execution of their public duty are not in dispute. It is therefore not an issue that the defendants can attempt to take protection under the POPA in this action. That being the case, is this suit statute barred? 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 4 of the affidavit in support of the motion, deposed to the facts that the claimants filed this suit on 29/7/2011 while the cause of action arose on 4/10/2007. The claimant’s counsel has however contended that the deposition in paragraph 4 of the defendants’ affidavit in support of the motion should be struck out having offended Section 115 (1), (3) and (4) Evidence Act 2011 (as amended). In paragraph 4 (a) and (b) of the claimant’s counter affidavit, it was deposed that the depositions in paragraphs 4 (a-j) of the defendants affidavit are facts received from another person but the deponent failed to give the time, place and the circumstance of the receipt of the information. The provisions of section 115 of the Evidence Act relied on by the claimant’s counsel is as follows- “(1) Every affidavit used in the court shall contain only a statement of facts and circumstances to which the witness deposes, either of his own personal knowledge or from information which he believes to be true. (2) ------------- (3) When a person deposes to 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 belief is derived from information received from another person, the name of his informant shall be stated, and reasonable particulars shall be given respecting the informant, and the time, place, and circumstance of the information” In the opening of paragraph 4 of the defendants’ affidavit, the deponent stated “That I have been informed by B.N Iwu (Mrs.), counsel handling this matter whom I verily believe as follows:” The facts deposed subsequently in the paragraph are the information so received from the said B.N Iwu Mrs. The time, place or circumstances of the information was not given. The deponent only stated her belief in B.N Iwu but did not depose to her belief in the truth of the information she received nor the facts and circumstances forming the ground of her belief in the information. I am inclined to agree with claimant’s counsel that paragraph 4 of the affidavit in support of the motion has not complied with the provision of section 115 of the Evidence Act. The paragraph is therefore incompetent and I accordingly strike it out. It appears to be the view of the claimant’s counsel that the consequence of the striking out of the offending paragraph is that the defendants have failed to show that the action is statute barred. That might be the position if the only process from which the court will derive facts to determine the competence of this suit is the affidavit evidence alone. The law is 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”. See also GULF OIL CO LTD vs. OLUBA (2003) FWLR (Pt. 145) 712 at 721; DAWODU vs. AJOSE (2011) All FWLR (Pt. 580) 1334 at 1345. 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 evidence. The parties appear not to dispute the date in which this action was commenced. From the record of this court on this matter, this suit was commenced by the claimant on 29/7/2011 against the defendants before the High Court of Imo State before it was transferred to this court pursuant to an order of the His Lordship, Hon. Justice Nonye Okoronkwo, made on 6/3/2014. I also recall my order of 12/6/2014 wherein I made it clear that the date of this matter remains the date it was commenced at the Imo State High Court. From the claimant’s counter affidavit, he did not dispute that his cause of action arose on 4/10/2007. It is quite clear from the claimant’s statement of facts, particularly paragraphs 15 and 16 thereof, that his cause of action arose on 4/10/2007 when he resumed duty after his leave and discovered that his salaries and emoluments during the period of his absence were not paid to his family. As it is, between the time the claimant’s cause of action arose in this case and the time he eventually filed the suit is a period of more than 3 months. Considered from that point, the claimant’s suit have become incompetent by operation of POPA. However, it has been decided that there are certain instances where Section 2 (a) of the Public Officers Protection Act will not apply. In the case of OSUN STATE GOVERNMENT vs. DALAMI (NIG) LTD. (2007) All FWLR (Pt. 365) 438 at 452, the Supreme Court, per Katsina-Alu JSC (as he then was) held that the Public Officers’ Protection Act does not apply to cases of contract, recovery of land, breaches of contract, money or debt owed or claims for work and labour done. See also F.G.N vs. ZEBRA ENERGY LTD. (2002) 18 NWLR (Pt. 891) 162 at 197; WURO BOGGA NIGERIA LTD & ANOR vs. HON. MINISTER OF FCT & ORS (2009) LPELR-20032; E.M.I.L. vs. M.F.C.T (2011) All FWLR (Pt. 576) 604 at 613. This court too has followed these authorities and taken the same position in several instances. In her reply on points of law to the written address of the claimant’s counsel, the defendants counsel quoted a portion of the decision of this court in the case of PATRICK NWANGWU vs. GOVERNOR OF IMO STATE and argued that this court decided in that case that limitation laws apply to labour cases. With respect to counsel, what this court held in that case, as clearly contained in the quoted portion, is that limitation laws apply to labour cases but not to cases relating to claims for salary and benefits. A look at the claimant’s reliefs in this case reveals that his claims are for his outstanding salaries and emoluments not paid to him or work he has done but not paid for by the defendants. Therefore, the claimant’s case is for claim for money owed or for work done. These claims fall within the settled exception to limitation of action by POPA. I hold the view that the claims of the Claimant being for money owed to him for work done is not affected by section 2 (a) of the Public Officers Protection Act. In the sum of this ruling, I find that the claims are competent and not statute barred. This application fails and it is dismissed as a consequence. The defendant made the point in paragraph 4 (g) and (f) of the affidavit in support of the application that the Attorney General of Imo State is a necessary party to this suit and ought to be joined, even though the order of Hon. Justice Nonye Okoronkwo on 16/10/2012 is valid and subsisting. Although this paragraph of the affidavit has been struck out in this application, I think there is the need to straighten the record. This is in view of the claimant’s deposition in paragraph 4 (d) of the counter affidavit that the said order no longer subsists as this case started denovo after the transfer of the suit to this court. It is shown at page 54 of the record of this matter that on 16/10/2012, Hon Justice Nonye Okoronkwo made an order joining the Attorney General of Imo State to this suit as the 1st defendant. His Lordship subsequently transferred the suit to this court. This suit is not a fresh suit. The orders made therein before the transfer subsist and remain valid unless and until set aside. As that order joining the Attorney General of Imo State has not been shown to have been set aside either by this court, or the court that made it or a higher court, the Attorney General of Imo State is and remains the 1st defendant in this suit. I have observed however that this proceeding is being conducted by the claimant and the 2nd and 3rd defendants to the exclusion of the 1st defendant. The 1st defendant is part of this matter and should be carried along henceforth. Therefore, I shall order hearing notice of the return date to be served on the Attorney General of Imo State, being the 1st defendant in this suit. All processes exchanged between the parties must also be served on the 1st defendant. Subsequent process to be filed in this Matter must reflect the proper parties. No order as to cost. Ruling is entered accordingly. Hon. Justice O. Y. Anuwe Judge