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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: April 29, 2015 SUIT NO. NICN/OW/52/2014 Between Mrs. K. C. Onyenoro - Claimant/Applicant And 1. National Root Crops Research Institute, Umudike 2. The Executive Director, NRCRI, Umudike Defendants/Respondents 3. The Governing Board, NRCRI, Umudike Representation Chief Mike Ndu for the Claimant A. C. Okoroafor; with him, Sam Hart Esq. for the Defendants/Applicants RULING/JUDGMENT The claimant took out this suit against the defendants on the 22nd day of May, 2014, claiming against the defendants jointly and severally as follows:- 1. A DECLARATION that Letter No. NRCRI/PF/C.529/256 of 10th December, 2013, purporting to dismiss the plaintiff from service of the National Root Crop Research Institute is absolutely void, unconstitutional and inoperative by reason of being contrary to the applicable Rules of the Public Service Rules and Constitution of the Federal Republic of Nigeria 1999. 2. A DECLARATION that the purported decision of the Institute’s Governing Board taken on the 5th of December, 2013 during her 74th meeting purporting to dismiss the Plaintiff is absolutely void, unconstitutional and inoperative being contrary to the applicable Public Service Rules and the Constitution of the Federal Republic of Nigeria. 3. An Order setting aside the letters No NRCRI/PF/C.529/256 of 10th December, 2013, as well as the decision of the Institute’s Governing Board during her 74th meeting on the 5th of December, 2013. 4. An Order directing the defendants to reinstate the plaintiff in her office as the Chief Accountant of National Root Crops Research Institute, Umudike forthwith and to pay the plaintiff all the arrears of her salaries and allowances as the Chief Accountant of the Institute from the 28th day of October, 2013 to date of judgment in this suit and thereafter to the date of her reinstatement in that office. In response, the defendants filed a joint conditional Memorandum of Appearance, as well as a joint statement of defence. At paragraph 46 of the defendants’ joint statement of defence, the defendants raised preliminary issues for determination, to the effect that before, during or at the conclusion of trial, the defendants shall urge the Court to strike out this suit in limine on the following grounds: a. That the originating process in this suit was not issued having not been signed and sealed as required by law; b. That the mandatory provisions of Section 97 and 99 of the Sheriffs and Civil Process Act were not complied with; c. That this suit is statue barred by the operation of Section 2(a) of the Public Officers’ Protection Act. By a Notice of Preliminary Objection dated the 6th day of October 2014 and filed on the 8th day of October 2014, and brought pursuant to Order 11 Rules 1, 2 and 3 of the NIC Rules 2007 (as amended by the practice direction of July 2012); Sections 97 and 99 of the Sheriffs and Civil Process Act; Section 2a of the Public Officers’ Protection Act CAP P41 Laws of the Federation of Nigeria 2004 and under the inherent jurisdiction of the Court, the defendants/applicants prays the Court for the following: a. An Order of this honourable court STRIKING OUT and/or DISMISSING this suit for want of jurisdiction. b. And for such further order(s) as the honourable court may deem fit to make in the circumstances. The grounds upon which the application is brought are as follows: 1. That by the provisions of Section 2(a) of the Public Officers’ Protection Act, this suit is statute barred. 2. That the mandatory provisions of Section 97 and 99 of the Sheriffs and Civil Process Act were not complied with. In his written address in support of the Notice of Preliminary Objection, Counsel for the applicants formulated the following two issues for the determination of the court: 1. Having regards to the claim of the claimant, as well as the provisions of Section 2(a) of the Public Officers’ Protection Act, whether this suit is statute barred – having been brought outside the three (3) months period stipulated by statute? 2. Whether the claimant complied with the provisions of the Sheriffs and Civil process Act in the service of the originating process in this suit from Owerri, Imo State and in Umuahia Abia State? In arguing issue one, which question Counsel answered in the affirmative, he submitted that this suit is statute barred as it was brought more than three (3) months next to the act of the defendants complained of. By the claim and pleadings of the claimant, it is not in dispute that the defendants are all public officers within the meaning of the term as contemplated by law. See – paragraphs 2 to 4 of the Statement of Claim. It is also not disputed that the gravamen of the claimant’s claim is that she was dismissed from the public service by the 1st to 3rd defendants. It is also not in dispute that the 1st to 3rd defendants act of dismissing the claimant from service, was done pursuant to and in execution of (or intended execution of) their public duty and authority to dismiss an erring staff from service. Section 2(a) of the Public Officers’ Protection Act, CAP P41 L.F.N. 2004 provides thus: “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 the execution of any Act, Law or authority, the following provisions 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. Counsel made reference to the interpretation of the phrase “any person” used in the above reproduced Section 2 of the Public Officers Protection Act, as opined by the Supreme Court in the case of IBRAHIM vs. J.S.C. & ANOR. (1997 – 1998) VOL. 4 ALL N.L.R. (pt. 302) @ 322 para. H; where their lordships held as follows: “It is beyond dispute that the word ‘person’ when used in a legal parlance, such as in a legislation or statute connotes both a natural person, that is to say a ‘human being’ and an ‘artificial person’ such as a corporation, sole or public bodies, corporate and incorporate”. At page 323 – 324 paragraphs H – B, the Supreme Court went further to posit that: “Without, therefore, seeking guidance from anywhere else, it seems to me plan that the definition of the word ‘person’ in the legal sense under the Nigerian Law is not limited to natural persons or human beings only as the appellant now vigorously appears to contend. It clearly admits and includes artificial persons such as a corporation sole, company or anybody of persons corporates or incorporate. In this regard, and again, without making reference to decisions of any foreign jurisdiction, it is clear to me that it cannot be right that the definition of ‘any person ‘ in the Public Officers (Protection) Law of Northern Nigeria 1963 (which is in pari material with the Public Officers Protection Act) must be read as meaning any person in any limited sense, that is to say, as referring only to natural persons or human beings. I am not, with respect, prepared to accept this interpretation as well founded. This is because, to ascribe to those words any limited meaning would tantamount to importing into the words of a statute, such qualifying or additional words that were not provided there in the first instance by the legislature. This exercise, the courts are not permitted to indulge in”. It follows therefore that the 1st to 3rd defendants are persons as contemplated under the Public Officers’ Protection Act. Counsel submitted further that whilst as shown in the claimant’s claim, the act, neglect or default complained of against the defendants took place on 28th October, 2013, and 5th December, 2013 and 10th December, 2013 respectively, this suit was only commenced on the 22nd day of May, 2014 – more than three months after the acts, neglect or default of the defendants now being complained of vide this suit. See Reliefs Nos. 1 – 4 of the claimant’s claim. According to Counsel therefore, the right of the claimant to bring this action against the defendants has long been extinguished, by virtue of Section 2(a) of the Public Officers’ Protection Act. He therefore urged the Court to strike out or dismiss this suit as being statute barred and for want of jurisdiction. In arguing issue two, counsel answered in the negative, the question whether the claimant complied with the provisions of the Sheriffs and Civil process Act in the service of the originating process in this suit from Owerri, Imo State and in Umuahia, Abia State. He went on that by the mandatory provisions of Sections 97 and 99 of the Sheriffs and Civil Process Act, service of originating processes outside the state where it was issued and in another state, must have endorsed thereon a notice to the following effect (that is to say): “This summons is to be served out of the … State and in the ….. state.” Likewise according to counsel, Section 99 of the same Sheriffs and Civil Process Act mandatorily requires that the period specified in such originating process for service out of the state in which it was issued and in another state as the period within which a defendant is required to answer before the court to the originating process, shall not be less than thirty days after service of the originating process has been effected. Counsel submitted that the originating process in the instant case falls short of these mandatory requirements of the law. See: NWABUEZE vs. OKOYE (1988) 4 NWLR (Pt. 91) 664. He therefore urged the Court to decline jurisdiction to hear this suit on this ground, and accordingly strike out same. He urged the Court to uphold this preliminary objection and strikeout and/or dismiss this suit as being statute barred. The Claimant on the 14th day of October 2014; filed a three paragraphed affidavit in opposition to this Preliminary Objection, upon which Counsel placed reliance. Counsel proceeded to formulate two issues for the Court’s determination: (a) Whether giving the nature and the time within which this suit was brought, that this suit is statute barred? (b) Whether in view of the provisions of the relevant laws in respect of the territorial jurisdiction of this court, sections 97 and 99 of Sheriffs and Civil Process Act are applicable in the service of Originating Process of this Court in Umuahia, Abia State. Counsel submitted in respect of issue one that Section 2(a) of Public Officers’ Protection Act, 2004 does not apply where the gravamen of an action borders on a breach of an extant law and a violation of the fundamental right of a claimant. Furthermore, by virtue of Section 14 of National Industrial Act, 2006, this court is empowered to finally determine all matters brought before it while Section 15 of National Industrial Act, 2006, provides that in this court that the rule of equity should be made to prevail and this simply implies that matters before this court should not be determined based on technicalities but rather on their merits. Counsel urged the Court to so hold, and therefore resolve issue one in favour of the claimant. In respect of issue two, Counsel submitted that it very obvious that by virtue of section 21(1) (2) (3) of the National Industrial Act, 2006; that Umuahia in Abia State is within the jurisdiction of this Court, and as such, the service of Originating Process from this court to Umuahia does not require compliance with Sections 97 and 99 of Sheriffs’ and Civil Process Act. As such, service is not outside the jurisdiction of this court and was not contemplated by the above Sections of that Act. Counsel urged the Court to so hold and to resolve issue two in favour of the claimant. He urged the Court to dismiss this Preliminary Objection and assume jurisdiction to determine this suit on its merit. The defence counsel on the 5th day of November 2014 filed a Reply on points of Law wherein he responded seriatim to the points raised in the Claimant’s counter affidavit and written address in opposition to the preliminary objection. According to the defence Counsel, learned counsel for the claimant/respondent at paragraph 2.1 of the his written address has erroneously and forcefully argued that the provisions of Section 2(a) of the Public Officers Protection Act does not apply in the instant case because, according to him, the gravamen of the claimant’s action borders on breach of an extant law and a violation of the Fundamental Right of the claimant. In reaction, Counsel submitted as follows: a. This suit is not an application for the enforcement of Fundamental rights as contemplated by Order 3 rule 1 of the Fundamental Rights (Enforcement Procedure) Rules 2009 (which provides to the effect that an application for the Enforcement of fundamental Right shall not be affected by any limitation statute whatsoever). b. Therefore, the bar to applicability of statutes of limitation under the Fundamental Rights (Enforcement Procedure) Rules 2009 does not extend/apply to the instant case as it was not commenced under the said Fundamental Rights (Enforcement Procedure) Rules, 2009. c. That since the claimant/respondent opted to sue at the National Industrial Court whose jurisdiction is guided and pertains only to matters as clearly set out in Section 254 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), she cannot take benefit of the provisions of the Fundamental Rights (Enforcement Procedure) Rules, 2009. d. Therefore, having sued in the manner she did, the claimant’s suit is guided by Section 2(a) of the Public Officers’ Protection Act and must be commenced within 3 months from the date of accrual of cause of action. e. It is trite law that in order to determine whether an action is statute barred, the courts would look at the following: i. The date when the cause of action accrued; ii. The date of commencement of the suit as indicated in the writ of summons/originating process; and iii. Period of time prescribed to bring an action to be ascertained from the limitation statute, i.e. the Public Officers’ Protection Act. See – AJAYI vs. ADEBIYI (2012) 11 NWLR (Pt. 1310) 137 @ 169 – 170 paras D – A. In the instant case, a look at the claim, statement of claim and Section 2(a) of the Public Officers’ Protection Act, shows that this action was brought outside the 3 months period permissible by law. It is therefore statute barred. Conversely, assuming without conceding that an alleged violation of the claimant’s Fundamental Right is/forms the gravamen of this suit and that it was commenced under the Fundamental Right (Enforcement Procedure) Rules, 2009, Counsel submitted that by Section 46 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), redress for any alleged violation of Fundamental Rights can only be sought/applied for in a High Court in that State where the alleged violation took place. In the circumstance, this Court lacks the jurisdiction to redress any alleged violation of the claimant’s fundamental rights as argued by learned claimant’s counsel. In the instant case, the claimant/respondent neither applied to a High Court for redress on the alleged violation of Fundamental Rights, nor did she commence same under the Fundamental Rights (Enforcement Procedure) Rules, 2009 in order to take benefit of the provisions therein. It is trite law that the jurisdiction of the court is determined by reference to the plaintiff/claimant’s claim/reliefs sought. The Court of Appeal in Nigeria institute of Medical Research vs. National Union of Road Transport Workers (2010) 12 NWLR (Pt. 1208) 328; held that: “It is the claim before the court that has to be examined in order to ascertain whether or not it comes within the jurisdiction of the court. This is because only the claims and reliefs donate jurisdiction to the court”. By her reliefs, the claimant is only claiming that certain administrative decisions of the defendants as contained in letter with No. NRCRI/PF/C. 529/256 of 10th December, 2013 as well as the decision of the 3rd defendant be declared void for allegedly violating of the Public Service Rules and the Constitution. Consequently, the contention of the learned counsel to the claimant to the effect that this suit is not statute barred cannot be countenanced in the circumstance, as the claimant’s suit is caught by the provisions of Section 2(a) of the Public Officer’s Protection Act. Counsel for the defendants referred the court to the decision of the Supreme Court in Ibrahim vs. Judicial Service Committee, Kaduna State (1998) 14 NWLR (pt. 584) 1; also reported in (1997 – 1998) Col. 4 ALL N.L.R. p. 302, where it was held that: “Where a statute provides for the institution of an action within a prescribed period, proceedings shall not be instituted after the time prescribed by such statute. Any action that is instituted after the period stipulated by the statute is totally barred as the right of the plaintiff or the injured person to commence an action would have been extinguished by such law” Counsel urged the court to discountenance the contention of respondent’s counsel and uphold the preliminary objection on this ground. In reaction to paragraph 2.2 of the Claimant’s written address in opposition to this preliminary objection where learned counsel to the claimant/respondent submitted that the provisions of Sections 97 & 99 of the Sheriffs and Civil Process Act do not apply to the instant case by virtue of Section 21(1)(2) & (3) of the National Industrial Court Act (which provides to the effect that the National Industrial Court shall have and exercise jurisdiction throughout the Federation, to be divided into judicial divisions); Counsel for the defence submitted in reply, that the provisions of Section 97 & 99 of the Sheriffs and Civil Process Act apply to these proceedings, irrespective of the fact that the jurisdiction of this Court covers the entire nation/country – Nigeria. According to Counsel, the Supreme Court, whilst interpreting a similar provision as it pertains to the Federal High Court, held thus: “The main issue raised in the appeal is whether a writ issued at the Federal High Court Lagos for service on a defendant outside Lagos needs to comply with the provisions of Sections 96 & 97 of the Sheriffs and Civil Process Act. Sections provides as follows: “97. Every writ of summons for service under this part out of the state or the Capital Territory in which it was issued shall, in addition to any other endorsement or notice required by law of such State or the Capital Territory, have endorsed thereon a notice to the following effect (that is to say)- ‘This summons (or as the case may be) is to be served out of the …. State (or as the case may be) …. And in the State (or as the case may be); The Sheriffs and Civil Process Act (CAP 407, Laws of the Federation of Nigeria, 1990), according to its heading, is “an Act to make provision for the appointment and duties of Sheriffs, the enforcement of Judgments and Orders and the service and execution of Civil Process of the Courts throughout Nigeria”. It is not in doubt that the provisions of the said Section 97 of the Act are applicable in all High Courts, including Federal High Court. The said Provisions, in my view have nothing to do with the coverage jurisdiction of the Federal High Court, which is Nationwide. It is therefore a total misconception to believe that the provisions of the Section are inapplicable to the Federal High Court because the jurisdiction of that court covers the entire nation.” Also, in the case of BELLO vs. NATIONAL BANK OF (NIG.) LTD. (1992) 6 NWLR (Pt. 246) 206 @ 217 – 218, the Court of Appeal Per Achike JCA (as he then was and of blessed memory) held that: “It is clear that the provisions of Section 97 of the Sheriffs and Civil Process Act, are couched in mandatory terms. Any service of a writ without proper endorsement as stipulated under Section 97 is not a mere irregularity but is a fundamental defect that enders the writ incompetent”.. See also the case of SKEN CONSULT NIG. LTD. vs. UKEY (1981) 1 SC 6; (2001) 49 WRN 63; where the Supreme Court held that the effect of non-compliance with Section 97 & 99 of the Sheriffs and Civil Process Act, goes to the competence or jurisdiction of the court. Such proceedings would be null and void. The Supreme Court further held that non-compliance with the Sheriffs and Civil Process Act was not a mere irregularity, but a fundamental defect which went to the root of the jurisdiction and competence of the court. Counsel therefore urged the Court to discountenance the contention of the claimant/respondent’s counsel, uphold this preliminary objection and strike out this suit in limine. On the 17th February, 2015 when this application came up for ruling, this Court directed that counsel on both sides should address the court in writing on the “specific cause of action” in the suit within 7 days. In compliance with the order of court, the defendants/applicants’ written address was filed on the 24th day of February 2015. Counsel restated the Claims of the Claimants and proceeded to submit, placing reliance on the case of Yare vs. N.S.W. & I.C. (2013) 12 NWLR (Pt. 1367) 173 @ 186 to 187 paras. E – A, where the Supreme Court, per Galadima JSC, whilst deciding a similar issue in a similar case, observed as follows: “In my humble view and my understanding of the foregoing judicial authorities, the simplest and ordinary meaning of cause of action means:- (a) A cause of complain (b) A civil right or obligation fit for determination by a court of law; and (c) A dispute in respect of which a court of law is entitled to invoke its judicial powers. See sections 6(1), (2), (3) and 4 (a) and (b) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). The question is whether the appellant in his claim, has disclosed a cause of action or a dispute in respect of which the trial court was entitled to invoke its judicial powers to determine. In determining whether there is a reasonable cause of action, the court is guided and directed to restrict itself to the statement of claim of the plaintiff and nothing else. See Shell BP Ltd. v. Onasanya (1976) NSCC 333 @ 336, (1972) All NLR 425; Alagdegbemi vs. Fasanmade (1988) 3 NWLR (Pt. 81) 129. In doing this, the court is not obliged to consider seriatim all the averments in the statement of claim, as a whole, it is sufficient to look into those averments that form the gravamen of the claim. See Seven-Up Bottling Co. Ltd vs. Abiola & Sons (2001) 5 MJSC 93, (2001) 13 NWLR (Pt. 730) 469”. Counsel for the defendants/applicants submitted that two things are apparent from the above dictum of the Supreme Court per Galadima JSC in Yare’s case viz:- a. The definition of the term “cause of action” ; and b. That in determining the “cause of action” in any suit/action, the courts are enjoined to restrict itself to the statement of claim. According to Counsel, it is the claimant’s statement of claim/complaint that would be examined in order to determine the “cause of action” in this suit, as well as whether the said “cause of action” is statute barred. In the instant case, the gravamen of the claimant/respondent’s complaint as contained in paragraphs 3, 4 and 30 of the statement of claim. It is based on this cause of action that the claimant has sought the reliefs at paragraph 31 of her statement of claim. The crux of the claimant’s cause of action is as follows: a. That she was dismissed from the service of the 1st respondent by the letter with reference No. NRCRI/PF/C.529/256 dated the 10th December, 2013, endorsed by the 2nd defendant; b. That the 3rd defendant (1st defendant Institute’s Governing Board) took a decision on the 5th of December, 2013 during her 74th meeting dismissing the claimant from its service c. That the defendants suspended her – the Claimant from duty. d. That whilst the suspension was still extant, the defendants dismissed her – the Claimant from service. The above are the cause of action in the claimant’s statement of claim, on which basis she has claimed reliefs. According to Counsel for the applicants, all through the claimant’s statement of claim, there is no place where she pleaded that she was suspended without pay. Therefore, the 2nd limb of Relief No. 4 of her claim wherein she claimed for arrears of salaries and allowances can only be countenanced where the principal cause of action/reliefs are not statute barred as is obvious in this case. It cannot by any stretch or imagination be taken to throw this case into the realm of the cognizable exceptions to the applicability of Section 2a of the Public Officers Protection Act (which renders this suit statute barred) as posited by a plethora of judicial authorities including the case of Osun State Government vs. Dalami (Nig.) Ltd (2007) 9 NWLR (Pt. 1038) 66 @ 83 – 84 para F – E, 100 para E – F. Counsel stated that there are no claims in the instant suit for recovery of land, breaches of contract or claims for work and labour done. He therefore commended to the court, the reasoning and conclusions reached by the Supreme Court in Yare vs. N.S.W. & I.C. (2013) 12 NWLR (Pt. 1367) 173. In that case and in a similar vein, the claimant claimed against defendant as follows;- “1. A declaration that the compulsory retirement of the plaintiff was unlawful as it did not meet the requirement of the civil service Rules. 2. An order setting aside retirement of the plaintiff on the grounds that the antecedents leading to the retirement were unauthorized and unofficial thus cannot result in an official sanction. 3. An order of court reinstating the plaintiff to his office without prejudice to any promotion or benefit he may have been entitled to. 4. An order compelling the defendants to pay the plaintiff all salaries, allowances and claims from date of purported retirement till date and from the date of judgment until judgment is finally liquidated”. In determining the appeal, the Supreme Court considered the provisions of Section 2(a) of the Public Officers’ Protection Act, vis-à-vis accrual of cause of action and at page 188 to 189 paras F – A, held as follows: “This is clearly the tenor of the provisions of Section 2(a) of the Public Officers’ Protection Act (supra). It provides as follows: 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 or authority, the following provisions shall have effect:- 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…..” At 191 to 192 Paras G – B, the Supreme Court further held that:- “The Public Officers’ Protection Act (supra) is a Statute of Limitation. It is exact as to the time frame. It provides for three months not a day longer than three months. It is quite clear and in no doubt that the appellant’s employment was terminated on the 9th January, 1999. Upon being relieved of his employment, the appellant had a choice to quickly enforce his right by going to the court to ventilate his grievances. He elected to sleep away; he woke up late to allege that he was waiting for the outcome of his appeal…” The provision of the Act is clear and unambiguous. The effect of the limitation law is that any action that is statute-barred removes the right of action, the right of enforcement and the right to judicial relief,” In the instant case, the claimant took out this suit on the 22nd day of May, 2014, purporting to challenge her dismissal from service of the 1st defendant on 10th December, 2013; on which premise, she has sought for reinstatement. From the date of commencement of this action on 22nd May, 2014, vis-à-vis the date of accrual of cause of action (being 10th December, 2013 and 5th December, 2013), it is clear that the three months period prescribed by the Public Officers Protection Act had lapsed, thereby rendering this suit statute-barred. To counsel, just as was posited by the Supreme Court in Yare’s case (supra), the Public Officers Protection Act provides for three months and not a day longer than three months. This suit is therefore irredeemably statute-barred and this Court cannot exercise jurisdiction over same. The 2nd limb of the 4th relief sought by the plaintiff in this suit does not clothe this Court with the jurisdiction to hear and determine this suit vis-à-vis the provisions of section 2a of the Public Officers Act which removes the right of the claimant to even challenge the dismissal or seek reinstatement, as it is only dependent upon if this Court finds that the dismissal was unlawful. Counsel went on that this is apparently so because – if by Section 2(a) of the Public Officers Protection Act, this Court lacks the jurisdiction to hear and determine the cause of action bothering on the dismissal and demand for reinstatement of the claimant in the service of the 1st defendant, this Court does not also possess the vires to delve into the issue of salaries and allowances flowing from the said dismissal as a consequential relief, as no employer goes ahead to pay the salaries of a dismissed staff whose action is statute barred by operation of the law. On the other hand, if the court is disposed to hear and determine this second limb of the 4th relief of the plaintiff bothering on salaries and allowances, Counsel urged the court to apply the doctrine of severance of pleadings and strike out every paragraph of the pleading and reliefs sought in this suit, which touch on the cause of action bothering on dismissal and reinstatement which are by operation of the law, statute-barred, leaving only those (if any) which touch on the salaries and allowances as claimed. Counsel urged the court to decline jurisdiction and strike out this suit as being statute-barred. The Claimant’s written address filed in compliance with the order of court was filed on the 6th day of March 2015. Counsel verbally sought and obtained leave to file out of time. In the said written address, Counsel for the Claimant submitted that the claimant is a staff of the 1st defendant who was employed in 1982 as a clerical officer and as a result of diligence, dedication and probity she rose through meritorious promotions to the position of the Chief Accountant at the Head Quarters of the 1st defendant. However, in October, 2013 the claimant was accused of misappropriation of funds by the defendants and on the 7th of October she was issued with a query to which she submitted her response, nevertheless, a few days later the defendants purportedly suspended the claimant from office and quickly constituted a Disciplinary Committee without giving her the opportunity to see and cross examine those who gave evidence against her before the Disciplinary Committee. Then, on 5th December, 2013 the defendants, relying solely on the report of the Disciplinary Committee, took a decision purporting to have dismissed the claimant from office which decision was purportedly conveyed to the claimant through a letter dated 10th December. 2013. According to Counsel, the above actions of the defendants are illegal, unconstitutional and contrary to the applicable public service rules, hence, they gave rise to the filing of this suit and consequently constitute the “cause of Action in this suit.” I have carefully considered the various addresses of counsel and the arguments proffered therein. The defendants’ preliminary objection prays this Court to strike out or dismiss the claimant’s suit for want of jurisdiction. The two grounds canvassed for the lack of jurisdiction are that: (1) By the provisions of Section 2(a) of the Public Officers’ Protection Act, this suit is statue barred, and (2) the claimant’s suit did not comply with the mandatory provisions of Section 97 and 99 of the Sheriffs and Civil Process Act. In view of these grounds of the Preliminary Objection and 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 competent. Before I go on to the issue, let me quickly comment on an aspect of the processes filed in respect of this application. In responding to the defendants’ application, the claimant filed what was titled “Counter affidavit of the claimant in opposition to the preliminary objection by the defendants.” It is observed that the defendants did not file any affidavit to support the application. Counter affidavit is usually filed to respond to depositions in an affidavit. Since the defendants did not file any affidavit, there is therefore no fact to counter requiring the claimant to file a counter affidavit. The claimant’s counter affidavit has no place in this application and it is accordingly struck out. In determining the issue in this application, each of the two grounds of the application shall be considered separately in the manner they were raised and argued in the written addresses of the counsels. In arguing issue 1 formulated by him, the counsel to the defendants submitted that this suit is statute barred by virtue of Section 2 (a) of POPA. 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 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 of 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. If the suit is not commenced within the prescribed period, the claimant’s right to any relief will be statute barred. However, before a person against whom the action is commenced can take protection under the section, it must be made clear that- i. The person 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 his written address, the defendants counsel submitted that the defendants are all public officers and the act of the defendants complained of by the claimant was done pursuant to and in execution of or intended execution of the defendants’ public duty and authority but the claimant brought this suit more than three months after the happening of the act of the defendants complained of by the claimant. By the Claimant’s description of the defendants in paragraphs 2, 3 and 4 of the “statement of claim”, there is no doubt that the defendants are all public officers. I have also observed from the claimant’s pleadings that the dispute leading to this suit has to do with an alleged non-compliance by the defendants with applicable statutes and laws in the dismissal of the claimant from employment. This fact is even clearer in the reliefs sought by the claimant. Therefore, the defendants have been sued in respect of an alleged neglect or default in the execution of a Law or their duty and authority. In the submissions of the claimant’s counsel in his written address, counsel did not dispute the fact that the defendants are public officers or the fact that the suit against the defendants is in respect of an alleged default in the execution of their public duty or authority. It is therefore settled that the defendants can invoke the protection afforded them under section 2 (a) of POPA in this action. Having come to that conclusion, the question now is whether 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. On 17/2/2014, I ordered the counsels to the parties to address the court on what is the cause of action in this suit. This was to enable the court pin point the time the cause of action actually arose. The addresses of the counsels on this point have been summarized earlier in this ruling. From the addresses of counsels, the facts of the claimant’s case and the reliefs the claimant sought in this case, it is clear to me that the claimant’s cause of action arose on 10th December 2013 when she received the letter dated same day dismissing her from employment. Because on that day, the factual situation which gave the claimant a right of action arose. A cause of action accrues 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 person 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 exists two people with interest at variance to each other over a subject matter, then the aggrieved party must go to court timeously” Also In CROSS RIVER UNIVERITY OF TECHNOLOGY vs. 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”. From the foregoing, it is my finding that the claimant’s cause of action arose on 10th December, 2013 and this suit was commenced on the 22nd May, 2014. This is a period of about 5 months 12 days. A period more than the three months period stipulated in section 2 (a) of POPA. The claimant’s suit is no doubt statute barred. The claimant’s counsel did not deny that the claimant’s suit was filed outside the 3 months statutory period. His contention however were that POPA does not apply to bar the claimant’s suit because (1) the claimant’s suit borders on a breach of an extant law and a violation of the claimant’s fundamental right and (2) by Section 14 and 15 of the National Industrial Act, 2006 it is rule of equity and not technicality that should be applied by this court. I shall briefly comment on this issues raised by the claimant’s counsel before I conclude this ruling. The claimant’s counsel has argued that Section 2(a) of the Public Officers’ Protection Act, 2004 does not apply where the action borders on a breach of a law or a violation of the fundamental right of a claimant. This argument of counsel may have been informed by the provision of Order 3, Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules 2009 which provides that an application for the enforcement of fundamental right shall not be affected by any limitation statute. The question is: Is the claimant’s suit an application for the enforcement of her fundamental right under the FREP Rules as to be covered under the order? Order 2 of the FREP Rules set out the process and the procedure of an action for the enforcement of fundamental rights. This suit was commenced not to be a fundamental right procedure but a general form of complaint in respect of the claimant’s dismissal from employment. Although she may have alleged lack of fair hearing before her dismissal, that alone cannot bring the case under fundamental right enforcement. The suit must have been brought under the FREP Rules and it is only in that case that statute of limitation will not apply. But in this case, the suit was not brought under FREP Rules and the reliefs sought by the claimant are not seeking enforcement of any of the rights guaranteed in Sections 33 to 44 of the 1999 Constitution. It is my view that this suit is not an application for the enforcement of the fundamental rights of the claimant to which Order 3 Rule 1 of the FREP Rules will be applicable. Without a doubt, POPA is applicable to this suit. The claimant’s counsel also relied on Section 14 and 15 of the National Industrial Act to argue that this court is empowered under the said sections to determine all matters brought before it to finality and on merit, and apply the rules of equity rather than decide the matter on technicalities. I do not see this argument to be tenable in the circumstances of this case. Having found in this ruling that Section 2 (a) of POPA is applicable to this suit, the effect is that the jurisdiction of this court to continue to hear the matter is ousted. Where a statute provides for the institution of an action within a prescribed period, proceedings shall not be instituted after the time prescribed by such statute. An action that is instituted after the period stipulated by the statute is incompetent and it goes to the jurisdiction of the court. See IBRAHIM vs. J.S.C, KADUNA STATE (SUPRA). This suit not having been filed within the time prescribed by Section 2 (a) of POPA, this court does not have jurisdiction to determine the matter. Section 14 and 15 of NIC Act cannot aid the claimant’s case. In the final analysis of the 1st ground of the defendants preliminary objection, I find and hold that the claimant’s suit is incompetent having been statute barred. The appropriate order to make in the circumstance is to strike out the suit. Accordingly, this suit is struck out. In view of this order, a consideration of the 2nd ground of the defendants NPO is no longer necessary. No order as to cost. Ruling is entered accordingly. Hon. Justice O. Y. Anuwe Judge