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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: May 12, 2015 SUIT NO. NICN/OW/85/2014 Between Sir Kingsley I. Wobo - Claimant/Respondent And 1. Obio/Akpor Local Government Council 2. The Governor of Rivers State Defendants/Applicants 3. The Attorney General & Commissioner For Justice of Rivers State Representation Dike Udenna for the Claimant M. C. Wordu for the 1st Defendant Dame M. C. Iroegbu, Director Civil Litigation, Rivers State Ministry of Justice; with O. Idowu esq. and U. Benjamin esq, (both State Counsels), for the 2nd and 3rd Defendants RULING/JUDGMENT The Claimant took out a complaint on the 29th day of October 2014, seeking the following reliefs: 1. A declaration that the Claimant being a Public and Political Office Holder in the Obio/Akpor Local Government Council within the meaning of the Rivers State Public and Political Office Holders’ Salaries, Allowances and Fringe benefits Law, No. 4 of 2002 is entitled to be paid salary, allowances and other perquisites of office due and accruable to his position as Special Adviser to the Executive Chairman of the Obio/Akpor Local Government Council. 2. A declaration that the stoppage and continuing refusal or failure of the Defendants to pay to the Claimant his due salaries, allowances, fringe benefits and other perquisites of office as a Public and Political Office Holder in the Obio/Akpor Local Government Council since May 2013 is wrongful, ultra vires the Defendants and constitutes a violation of the Claimant’s rights under the Rivers State Public and Political Office Holders’ Salaries, Allowances and Fringe benefits law, No. 4 of 2002. 3. An order directing the Defendants to pay over to the Claimant the sum of: a) N3,073,107.00 (Three Million, Seventy Three Thousand, One Hundred and Seven Naira) only being and representing arrears of monthly salaries due and accruable to the Claimant from May 2013 till May 2014 calculated at the rate of N 256,092.25(Two Hundred and Fifty-Six Thousand, Ninety-Two Naira, Twenty-Five Kobo) only per month, which was unlawfully withheld by the Defendants. b) N2,200,000.00 (Two Million, Two Hundred Thousand Naira only) being the outstanding balance of the Wardrobe/Furniture Allowance due and accruable to the Claimant. c) N600,000.00 (Six Hundred Thousand Naira) being and representing due and unpaid imprest accruable to the Claimant for the running of his office from May 2013 till May 2014 calculated at the rate of N50,000.00 per month. d) N3,000,000.00 (Three Million Naira) being and representing severance gratuity due and accruing to the Claimant. 4. The sum of N30,000,000.00 (Thirty Million Naira) only being general damages for the wrongful and arbitrary stoppage and continued withholding of the Claimants’ salaries, allowances, fringe benefits and other perquisites of office by the Defendants for no just cause. 5. An order of injunction restraining the Defendants whether by themselves, their servants, agents or privies from further interfering with the payment of the Claimants’ salaries, salaries, allowances and other perquisites of office, including the severance gratuity as Special Adviser of Obio/Akpor Local Government Council or howsoever interfering with the payment of the Claimants’ lawful service entitlements. By a Notice of preliminary objection brought pursuant to Order 5 Rule 2 and Order 4 Rule 5 of the National Industrial Court Rules 2007 and Section 2A of the Public Officers Protection Act, the 2nd and 3rd Defendants seek the following: 1. An order setting aside the service of the originating processes filed at the registry of this court for being in flagrant violation of Order 7 Rules 1 (1), 6 and 8 of the National Industrial Court Rules 2007. 2. An order striking out and/or dismissing this suit for being statute barred. The grounds upon which this objection is brought are as follows: a. That the 2nd Defendant was not served personally nor by substituted service the Claimant’s originating processes in this suit. b. That the purported service on the 2nd and 3rd Defendants through an executive officer in the chambers of the 3rd Defendant is defective, invalid and unknown to law. c. That this suit is caught by the limitation law to wit: the Public Officers Protection Act Laws of the Federation of Nigeria in force, this suit having been filed more than three (3) months after the cause of action accrued. d. Flowing from the above, the condition precedent to the exercise of jurisdiction by this Honourable Court was not fulfilled by the claimant. The 2nd and 3rd Defendants’ Notice of Preliminary objection is supported by an 11 paragraph counter-affidavit deposed to by one Patrick Enebeli Esq., a Principal State Counsel in the Department of Civil Litigation in the office of the 3rd Defendant. In the Written Address of the 2nd and 3rd Defendants filed in support of the preliminary objection, counsel for the applicants submitted that the claimant herein, who claims to be a public and political officer holder in Obio/Akpor Local Government Council of Rivers State, instituted this suit against the defendants by causing a complaint to be issued out of the Owerri Registry of this honourable court on the 5th day of October, 2014. By the aforesaid complaint and accompanying process, the claimant seek against the defendants, declaratory as well as orders for the payment of various sums of money as alleged salaries, allowances and other perquisites of office allegedly due and accruable to him as alleged Special Adviser to the Executive Chairman in the said Obio/Akpor Local Government Council between May 2013 to May 2014. It is the submission of counsel that on admission of the claimant, the 2nd defendant is the Governor of Rivers State and the claimant’s cause of action is totally based on his alleged actions or inactions as they relate the non-payment of the alleged claimant’s salaries, allowances and other perquisites of office. The 3rd defendant is the Chief Law Officer of the Rivers State. They are both public officers and protected by the Public Officers Protection Act. The claimant’s complaint/statement of fact is in the record of this court which the court can take judicial notice of, by virtue of Section 122(m) of the Evidence Act, 2011. Curiously, the said 2nd defendant/applicant was not served with the claimant’s/respondent’s originating processes in this suit contrary to all known principles of natural justice and fair hearing. Worst still, the purported service of the claimant’s originating processes in this suit on a clerk in the chambers of the 3rd Defendants of the originating processes meant for the 2nd & 3rd defendants is clearly defective and liable to be set aside. This is more so as the 2nd & 3rd defendants are not corporations or companies to warrant his being served through his clerk. Counsel for the applicants then proceeded to formulate the following three (3) issues for the determination of the court: i. Whether the purported service on the 3rd defendant’s chambers of the claimant’s originating processes meant for the defendant is valid and satisfied the legal obligation for service on the 2nd defendant? ii. Whether the purported service of claimant’s originating processes meant for the 2nd & 3rd defendants on P.K. Kogbara, executive officer in the chambers of 3rd defendant is proper service in law? iii. Whether this suit is statute barred? In arguing issue one, it is the submission of counsel in answering the question in the negative, that the purported service on the Governor of Rivers State (2nd defendant/applicant) through the chambers of the Honourable Attorney General of Rivers State (3rd Defendant/applicant herein) is invalid service defective and unknown to any law of this country. By the provisions of Section 96 of the Sheriffs and Civil Processes Act, Laws of the Federation of Nigeria 2004 (as amended) the issue of service of originating processes on a defendant is governed by the appropriate Rules of Court. Section 96 of the said Act, which is a Federal enactment, provide unambiguously as follows:- “1. A Writ of Summons issued out or requiring the defendant to appear at any court of a State or the Capital Territory may be served on the defendant in any other State or the Capital territory (L.N. 47 of 1995). 2. Such service may, subject to any rules of court which may be made under this Act, be effected in the same manner as if the writ was served on the defendant in the State or the Capital Territory in which the writ was issued. Section 95 of the same Act defines Writ of Summons as follows:- “Writ of Summons” includes any writ or process by which a suit is commenced or of which the object is to require the appearance of any person against whom relief is sought in a suit or who is interested in resisting such relief” By this definition, the claimant’s originating complaint and accompanying processes in the instant suit undoubtedly qualify as Writ of Summons. The Rule has been laid down that originating processes must be personally served on the defendant for the purposes of bringing an action to the notice of the party in the suit. See Order 7 Rule 1(1) of this National Industrial Court’s Rules 2007. Further submit that Order 6 Rule 3 of this National Industrial Court rules 2007 provides thus:- “3. The Registrar shall promptly arrange for service of a copy of the originating process and accompanying documents on each defendant or Respondent.” Counsel submitted that in the instant case, there are three (3) defendants as clearly stated on the face of the claimant’s complaint which is part of the Record of this Court that the court is enjoined to take Judicial Notice of Pursuant to Section 122(2)(m) of the Evidence Act, 2011 and each of them are mandatorily required by the afore reproduced Rules of this court to be served. Counsel then drew the court’s attention to the significant word “shall” used in Order 6 Rule 3 of the National Industrial Court Rules, 2007 quoted above. According to Counsel, it was held by the Supreme Court of Nigeria in the case of DIOKPA FRANCIS ONOCHIE & 2 Ors vs. FERGUSON ODOGWU & 7 Ors. (2006) 6 NWLR (Pt. 975) 65, on page 89, paras. C – E of the report, that the word “Shall” is used to express a command or exhortation or what is legally mandatory. In NATIONAL ASSEMBLY & 3 ORS vs. CEE CHRIS IVESTMENT CO. LTD. (2008) 5 NWLR (Pt.1081) 519, Omoleye, J.C.A, delivering the leading judgment of the Court of Appeal, on page 540, paras. D – G held:- “The word “Shall” is a word of command and it denotes direction, compulsion, a mandate, an obligation and gives no room for discretion. In whatever way it is used, whether in a mandatory or directly sense, there has to be a fulfillment of such mandate or directive. Counsel cited in support of this submission, the following cases: • M.H. Tanko vs. Caleb & Ors. (1999) 8 NWLR (Pt. 606) • Captain E.C.C Amadi vs. N.N.P.C. (2000) 10 NWLR (Pt. 674) P. 76 • A.L. Abimola vs. I.F. Aderoju & 3 Ors (1999) 5 NWLR (Pt. 601) P. 100. • Lt. General Ishaya Rizi Bamayi vs. Attorney General of the Federation & 3 Ors (2001) 12 NWLR (Pt. 727) 468 on page 497, paras. F – G • Achineku vs. Ishagba (1988) 4 NWLR (Pt. 89) 411 • National Inland Waterways Authority vs. The Governing Council of the Industrial Training Fund & Anor. (2008) 7 NWLR (Pt. 1085) 109 on page 120 para. D – E. According to the applicants, the pertinent question now is: whether the claimant complied with the mandatory provision of Order 6 Rule 3 Rules of this Court? In other words, is the purported service on the 2nd defendant of the claimant’s originating processes on the 2nd defendant proper in law? This counsel answered in the negative; and submitted further that by the clear and unambiguous provision of Order 7 Rule 1(1) of the Rules of this Court (supra) service of originating process must be personal and it is only in case in which a corporation is sued or personal service is impracticable that the originating process can be served either by substituted service with the leave of this court or with leave of court by service on responsible officer of the corporation or company. According to counsel, in the instant case, the 2nd defendant was neither served personally nor by substituted service contrary to all known laws. Counsel went further that it is obvious in this case that the claimant/respondent was moved into the purported service on the 3rd defendant of the claimant’s originating processes meant for the 2nd defendant, not by the requirements of the law on the subject or any difficulty in effecting proper service, but by his need for convenience and with the bad intent to misrepresent facts to this court that the purported service on one P.K. Kogbara and Executive Officer in the Chambers of the Attorney General, Rivers State of claimant’s originating process is proper service. Unfortunately, the law cannot support this. Counsel therefore urged the court to resolve this issue in favour of the Applicants and hold that the purported service on the Governor of Rivers State, the 2nd defendant, through the Attorney General of Rivers (the 3rd defendant herein) is invalid and has not satisfied the legal requirement for proper service on the 2nd defendant thereby robbing this court of jurisdiction to entertain the claimant’s entire suit. The Supreme Court aptly captured the effect of lack of service on party to a suit in the case of Kida vs. Ogunmola (supra) at 286 Ratio 8 thus:- “Whether service of a process is legally required, the failure to serve it in accordance with the law is a fundamental flaw and a person affected by any order but was not served with the process is entitled, ex debito justitiae, to have the order aside as a nullity. (Obinonure v. Erinosho (1966) 1 All NLR 250; Mbadinuju v. Ezuka (1994) 8 NWLR (Pt. 364) 535; Sken-Consult v.Ukey (1980)1 SC 6; Adeigbe v. Kusimo (1965) (NMLR 284 referred to). P. 393, paras. G – H)”. See also the case of Nelson Ononye & 2 ors vs. Right Revd. Monsignor C. Chukwuma (Parish Priest in charge of St. Joseph’s Catholic Church Asaba for himself and on behalf of members of the parish and Catholic dioceses of Isselle-Uku) 2005) 17 NWLR (Pt. 953) 90 esp 95 Ratios 7, 8, 12 & 15. Counsel went further that where service is by substituted means can be an option, there are conditions mandatorily required by law to exist before such service by substituted means can be valid which said conditions were not complied with by the claimant herein before purporting to serve the 3rd defendant with his originating processes meant for the 2nd defendant. In the case of Kida vs. Ogunmola (2006) 13 NWLR (Pt. 997) 377 @ 384, the Supreme Court established that “substituted service can only be employed when for any reason a defendant cannot be served personally with the processes. For example, when the defendant cannot be traced or when it is known that the defendant is evading service”. The court further held that when it becomes appropriate for a claimant to adopt the procedure of substituted service his affidavit in support should state the grounds on which the application is based and that the abortive efforts must also be recounted. See also Mark vs. Eke (2004) 5 NWLR (pt. 865) 53. The apex court went ahead to say in ratio 2 of Kida’s case (supra) that: “A Writ of Summons or any originating process must be properly served on the defendant. Without such service, he may not know that he has been sued. He may not know the claims against him. The object of the service of court process is to give notice to the defendant of the claims against him, so that he may be aware of, and be able to resist, if he desires to, that which is claimed against him. (Pg. 393, paras. F-G).” “15. Their Lordships of the Supreme Court continued thus at Ratio 15: “Where it is necessary to adopt substituted service, the plaintiff makes an application to the court by-parte motion. The affidavit in support should state the grounds on which the application is based as well as the form of substituted service, which is proposed. The abortive efforts made for personal service should be deposed to. If the reason for the application is evasion of service by the defendant, a mere statement to that effect is not enough. The grounds for the statement must be given. So also are the reasons for the form of substituted service proposed. Other material averments are the date of the issue of the Writ, how long it has remained unserved; whether the defendant is normally within the jurisdiction and was within it as the date of issue. If he is outside the jurisdiction, then when he left it and why”. To counsel, the conclusion from the foregoing is that the purported service of the originating processes meant for the 2nd defendant on the 3rd defendant’s officer does not constitute proper service as, ab initio, it ought not to have been served on the 3rd defendant/applicant. He urged the court to so hold. In arguing issue two, counsel answered in the negative, the question as to whether the purported service of claimant’s originating processes meant for the 2nd & 3rd defendants on P.K. Kogbara, an executive officer in the chambers of the 3rd defendant is a proper service in law. Counsel conceded to the provisions of Order 7 Rule 8 of the National Industrial Court Rules 2007 which provides thus: “8. Whether a Minister or Commissioner, or the Attorney-General or the Director of Public Prosecutions, or any other Public Officer of the Federal Republic of Nigeria or of a State thereof is party, ex-officio or as representing the Federal or State Government, as the case may be, in any proceedings in the court, any notice or other document may be served on him or her by leaving it at or by sending it by registered post or courier service to his or her chambers or office and service in this manner shall be as effective as if it were personal service.” Counsel submitted however that the 2nd & 3rd defendants are corporate entities by virtue of Sections 195 and 192 of the 1999 Constitution of Nigeria (as amended) and they need not be served personally since the complaint is not one filed against them personally but rather the complaint is directed at their offices. To counsel, since the 2nd and 3rd defendants are bodies corporate by virtue of Sections 195 and 192 of the Constitution of Nigeria 1999 (as amended), the relevant provisions of the rules of this Court governing the service of the originating processes on them is Order 7 Rule 6 of the Rules of this court 2007 (as amended). The said Order 7 Rule 6 of this court provides thus:- “6. Subject to any statutory provision regulating service on a registered company, corporation or body corporate, every originating process or other process requiring personal service may be served on the organization by delivery to a director, secretary, trustee or other senior, principal or responsible officer of the organization, or by leaving it at the registered, principle or advertised office or place of business of the organization within the jurisdiction”. It is counsel’s submission that service on P. K. Kogbara Executive Officer in the Chambers of the 3rd defendant (Honourable Attorney General, Rivers State) Rivers State Ministry of Justice is improper service as P.K. Kogbara Executive Officer does not fall within the categories of persons outlined in Order 7 Rule 6 supra of the rules of this court. Counsel went on that looking at the categories of persons who can be served in the case of service on body corporate such as the 2nd and 3rd defendants, the interpretation of the class of persons as are clearly stated and outlined in the said Order 7 Rule 6 Rules of this court 2007 must be a director, secretary, trustee or other senior, principal or responsible officer of the organization of the corporation and none other officers shall suffice relying on the well-known Rules of interpretation of statutes commonly referred to as the “Ejusdem Generis Rule”. In the instant complaint, P.K. Kogbara Executive Officer, who purportedly received the complaint on behalf of the 2nd and 3rd defendants on 05/11/2014 is not a director, secretary, trustee or other senior, principal or responsible officer in Rivers State Ministry of Justice as required by Order 7 Rule 6 Rules of this court 2007 (as amended). Flowing from the above submission, the 2nd and 3rd defendants, on the strength of the above submission pray this Honourable Court to hold that the purported service on the 2nd and 3rd defendants through P.K. Kogbara Executive Officer in the Rivers State Ministry of Justice is clearly improper in law and should be set aside by this Court. Counsel referred further to the ruling delivered on 10/12/2012 by Honourable Justice (Sir) B.A. Georgewill, KSC Judge of the High Court Rivers State (as he then was but now Justice of the Court of Appeal) in Suit No. PHC/1205/2012: Mr. Tami T. Adu vs. The Governor of Rivers State & 2 Ors. (Unreported) but a certified True Copy is attached. In the said Ruling His Lordship Georgewill, J. speaking on the service on one P.K. Kogbara Executive Officer (E.O.) in the Rivers State Ministry of Justice of the originating processes meant for the Attorney General Rivers State in the afore suit stated thus: “In this application, the parties and ad idem that service on the 2nd defendant was on one P.K. Kogbara Executive Officer in the Ministry of Justice Rivers State while the service on the 3rd defendant was on one Obianga Roberts, HEO in the Ministry of Urban development. It would appear that by their submissions while the counsel for the defendants/applicants contends that service on these persons are improper as not coming within the categories of persons outlined in Order 7(9) RHC 2010, it is the contention of the counsel for the claimant/respondent that service on these persons being officers in the respective corporate entities of the 2nd and 3rd defendants was proper being in line with the provision of Order 7(9) RHC 2010. In this preliminary objection, while the defendants/applicants are saying that the service on them was not proper, it is the claimant/respondent that contends that the service was proper and in law he who asserts the negative has no burden of proof as it is he who asserts the positive that carries the initial burden of proof. In other words the burden is on the claimant/respondent who assets that the service on the 2nd and 3rd defendants/applicants was proper, a positive assertion to show that indeed the service was proper as he alleges and not for the defendants/applicant to prove that the service was not proper, a negative assertion unless and until the claimant/respondent has led sufficient evidence in support of his positive assertion and then the onus would shift unto the defendants/applicants to lead evidence in proof of their assertion that they have not been properly served. It is for this singular reason that I view the concession by the Counsel for the claimant/respondent on 13/11/2012 that the service on the 1st defendant was improper as justifying my vie in this ruling that the initial burden was on the claimant/respondent to show that the service on the officers in the offices of the 2nd and 3rd defendants amounted to proper services on the 2nd and 3rd defendants”. His lordship went on to observe and hold as follows at page 7 of the said ruling. “Looking at the categories of persons who can be served in the case service on a corporation, in my view the interpretation of the class of persons as are clearly stated and outlined in the said Order 7(9) RHC 2010 must be principal and responsible officers of the corporation and none other officers shall suffice applying the well-known rules of interpretation of Statutes commonly referred to as the Ejusdem Generis rule. In this suit, P.K. Kogbara Executive Officer who received the Writ of summons on behalf of the 2nd defendant on 6/6/2012 in the absence of any counter affidavit showing him to be a principal or responsible officer in the Ministry of justice rivers State is in my view and I so hold firmly neither a principal nor responsible officer as required by Order 7(9) RHC 2010. I am aware that there is an affidavit of service deposed to by one Francis K. Munonye, a bailiff in the office of the deputy Sheriff deposing to the fact of services of the Writ of Summons on the 1st, 2nd and 3rd defendants and in law an affidavit of service is a prima facia evidence of service but which prima facia evidence had been controverted firstly by the concession of Counsel for the claimant/respondent that indeed there has been no service on the 1st defendant and whose purported service had since been set aside by this court on 13/11/2012.” His lordship then found as a fact thus: “I have in this preliminary objection also found as fact and so held firmly that the service of the Writ of summons on the EO and HEO in the offices of the 2nd and 3rd defendants respectively was not in compliance with the requirements of Order 7(9) RHC 2010. It follows therefore, and I so find as fact that the service on the 2nd and 3rd defendants/applicants was also clearly improper and thus controverting the affidavit of service by the bailiff in this suit”. His lordship concluded thus: “In the light of the finding of facts above to the effect that the service on the 2nd and 3rd defendants/applicants was improper, I have no difficulty resolving the sole issue for determination in this preliminary objection in negative and hold firmly that the preliminary objection seeking to set aside the purported service on the 2nd and 3rd defendants/applicants has merit and it is hereby upheld and since in law service of originating process is a sine qua non to the exercise of jurisdiction by the court in any given case, I hold that the service of the originating processes in this suit on all the defendants was improper and consequently the said improper service of this suit on the 1st, 2nd and 3rd defendants/applicants, are hereby set aside. See AKIDA vs. OGUNMOLA (supra); OKOYE vs. CPMB LTD. (supra). In the result, the Preliminary Objection succeeds and it is hereby upheld and the service of the Writ of Summons and all other processes in this suit on the 1st, 2nd & 3rd defendants/applicants, having been found to be improper, is hereby set aside”. Counsel for the applicants herein commended the afore ruling of Georgewill, J. (as he then was now Justice of the Court of Appeal) to this Court and prayed the court to, on its strength, set aside the purported service on P.K. Kogbara Executive Officer in the chambers of the Attorney General, Rivers State, of the originating processes meant for the 2nd and 3rd defendants as he is not a director, secretary, trustee or other senior, principal or responsible officer of the organization as envisaged by order 7 Rule 6 of the Rules of this National Industrial Court 2007 as amended which is presently under consideration. The aforecited Ruling of Georgewill, J. has not been set aside or appealed against. It is valid and subsisting and persuasive on this Court. Counsel urge the court to be persuaded by the aforecited ruling of Georgewill, J. and hold that the purported service on the 2nd and 3rd defendants is improper or in valid and set aside same. Finally counsel urged the court to hold that failure to serve process where it is required is one that goes to the root of the proper procedure in litigation. Every party to litigation must be served with the Writ of Summons, it is the service of the process that clothes the court with jurisdiction to hear and entertain the case at hand. It is truly a pre-condition for the court’s exercise of its jurisdiction, and the effect of failure to comply with this pre-condition is that any proceedings embarked on by the court would be declared a nullity. This accord with the principle of natural justice which postulates that both sides to a case should not only be heard but they should also be seen to have been heard. (Skenconsult (Nig.) Ltd vs. Ukey (1981) 1 SC 6; Integrated Builders vs. Domzaq Ventures (Nig.) Ltd. (2005) 2 NWLR (pt. 909) 97 referred to (P. 115, paras. E – G). In arguing issue three, counsel answered in the affirmative, the question as to whether this court ought not to dismiss or strike out this suit for being statute barred having not been commenced within the period prescribed by section 2(a) of the Public officers Protection Act, Laws of the Federation of Nigeria. According to counsel, to clearly support this answer, the following questions need to be resolved: Who is a Public Officer? Section 2(a) of the Public Officers Protection Act provided thus: “Whether any action, prosecution or other proceeding is commenced against any person for any act done in pursuant or execution or intended execution of any Act 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 proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of a continuance of damage or injury, within three months next after the ceasing thereof: Provided that if the action, prosecution or proceeding be at the instance of any person for cause arising while such person was a convict prisoner, it may be commenced within three months after the discharge of such person from prison”. Counsel submitted that the definition of “a person” when used in a statute includes both natural and artificial persons. In the case of Ibrahim vs. J.S.C. (1998) 14 NWLR (Pt. 584) 1, the Supreme Court had cause to construe the meaning of the word ‘any person’ as used in the Public Officers Protection Law of Northern Nigeria 1963 which is pari material with the provisions of the Public Officers (protection) Act in force. The Supreme Court per Iguh J.S.C. held thus: “Without, therefore, seeking guidance from anywhere else, it seems to me plain that the definition of the word “person” in the legal sense under the Nigerian law is not limited to natural persons or human being only as the appellant now vigorously appear to contend. It clearly includes and admits artificial persons such as a corporation sole, company or anybody of persons corporate or incorporate. In this regard, and again without making any reference to decisions of any foreign jurisdiction of “any person” in the Public Officers (Protection) Law of Northern Nigeria, 1963 must be read as meaning any person in any limited sense, that is to say, as referring only to natural or human beings. I am not, with respect, prepared to accept this interpretation as well founded .. Unless the contrary intention is indicated, and no such intention is therein manifested, those words in the Public Officers (Protection) Law include persons known to law, inclusive of artificial persons public bodies or body of persons corporate or incorporate as well as statutory bodies or persons, whether sued by their official titles or not, so long as they are sued in respect of an acts done in pursuance or execution of any law or any public duty or authority”. Counsel went on that the 2nd and 3rd defendants in the instant case, are Public Office within the purview of the Public Officers (Protection) Act and therefore are entitled to the protection therein. In the case of Ibrahim vs. J.S.C (supra) the Supreme Court held per Iguh J.S.C. at page 37, as follows: “With the greatest respect, I cannot pretend that I fully appreciate Learned Counsel’s contention in this area of his argument. In the first place, although the title of the relevant law implies a law to protect public officers’, it is beyond argument that government positions such as Attorney General, Permanent Secretary, Inspector General of Police et.c although “Public Officers”, they are nonetheless public officers in law. I cannot, with respect, accept that an Attorney-General, Permanent Secretary or the Inspector General of Police is not a “Public Officer” as known to law”. In the instant case, the claimant is suing the Governor of Rivers State and the Attorney General of Rivers State. These officers fall within the definition of public officers as decided by this court in Ibrahim vs. J.S.C. (Supra) therefore, we submit with respect that the 2nd & 3rd defendants are entitled to the protection afforded public officers under the Public Officers (Protection) Act. What is the Object of Section 2(a) of the Public Officers Protection Act? In answering this question, counsel for the applicants submitted that the object of Section 2(a) of the Public Officers Protection Act is to protect officers who have acted pursuant to the duties of their office. In the case of EGBE vs. ALHAJI (1990) 1 NWLR (Pt. 128) 599 – 560 the Supreme court held thus:- “What object does the statute seek to achieve? It is plain to me that the main object of the statute is to protect public officers who have acted pursuant to the duties of their office from being harassed with state claims and proceedings”. In the instant case, this action was not commenced until about four (4) months and fifteen (15) days (more than 3 months) after the 30th day of May 2014 when the alleged statutory three (3) years tenure of office of the Chairman expired and the defendants allegedly refused to pay the claimant’s alleged salaries, allowances and other perquisites of office, the subject matter of this suit by virtue of the Rivers State Public and Political officer holders’ salaries, allowances and fringe benefits law No. 4 of 2002. Refer my lord to paragraphs 14 and paragraph 18 (iii)(a)(c) of the claimant’s Statement of Facts filed on 15/10/2014 which is part of the records of this court that the court can take judicial notice of pursuant to section 122(2) (m) of the Evidence Act, 2011. Counsel urged the court to dismiss or strike out this suit for being caught by the limitation imposed in section 2(a) of the Public Officers Protection Act, laws of the Federation of Nigeria. What is the Effect of not complying with the Provisions of Section 2(a) of the Public Officers Protection Act? In answering this question, counsel submitted that failure to comply with the provisions of Section 2(a) of the Public Officers (Protection) Act which is a statute of limitation renders an action statute barred and unenforceable in law. In the case of Ibrahim vs. J.S.C. (supra) the Supreme Court held: “It suffices to state that a statute of limitation, such as the Public Officer (Protection) Law, Cap III, Vol. 3, laws of Northern Nigeria, 1963 removes the right of action, the right of enforcement, and the right to judicial relief in a plaintiff and this leaves him with a bare and empty cause of action which he cannot enforce if the alleged cause of action is statute barred, that is to say, if such a cause of action is instituted outside the three months statutory period allowed by such law. The general principle of law is that where a statute a statute provides for the institution of an action within a prescribed period, proceedings shall not be brought 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 the action would have been extinguished by such law”. Counsel submitted further that equity aids the vigilant and not the indolent. In the case of Ntuks vs. NPA (2007) 13 NWLR (Pt. 1051) 392 @ 428, the Supreme Court held thus: “I think the law would not allow a sleeping party to wake up abruptly to lay a claim on a thing that he stood by to watch another person take it away. The law assists only those who are vigilant. The Latin maxim has it: vigilantibus et non dormientibusjurasubvenunt i.e. the laws aid those who are vigilant, not those who sleep on their rights”. Counsel urged the court to vacate or set aside the purported service of the claimants originating processes on the 2nd & 3rd defendants and hold that there was no proper service on the applicants or alternatively to dismiss or strike out this suit for being statute barred having been brought outside the period prescribed in section 2(a) of the Public Officers Protection Act, laws of the Federation of Nigeria. In opposition to the Preliminary Objection of the 1st and 2nd Defendants, the claimant/respondent filed a 17 paragraph affidavit deposed to by the one Nelson Edet Udoh. In the written address accompanying the Claimant’s counter affidavit, Counsel for the Claimant contends that the defendants’ Objection should be dismissed with substantial costs against the 2nd and 3rd defendants/applicants because: (i) The Notice of Preliminary Objection is defective and incompetent for non-compliance with the Rules of this honourable Court. (ii) The service of the originating complaint and its accompanying processes at the chambers of the Honourable Attorney General by the Bailiff/Officer of this Honourable Court is good and proper personal service on the 2nd and 3rd defendants. (iii) That the purpose of service of process whether personal or substituted is to give notice to the adverse party on whom service is to be effected so that he may have notice/be aware of and able to resist if he may, that which is sought against him. (iv) That having become aware of this proceedings and taken appropriate steps including entering appearance by Counsel of their choice and filing their joint Statement of Defence, the 2nd and 3rd defendants have waived any right to complain, if at all, about improper service of the originating processes. (v) That the Public Officers Protection Act does not protect public officers who have acted outside the colour of their statutory or constitutional duties and also does not apply to cases founded on contract of employment, recovery of land and claims for work and labour done by the plaintiff, as in this case. Counsel raised the following issues for the determination of the court: 1. Whether the Notice of Preliminary Objection is not defective and incompetent and therefore liable to be stuck out for non-compliance with Order 5 Rule 2(1) & (2) of the National Industrial Court Rules 2007, Order 11 Rule 1(3) of the National Industrial Court of Nigeria Practice Direction, 2012 and the rules of pleadings? 2. Whether the service of the originating complaint and its accompanying processes on the 2nd and 3rd defendants/applicants in this case is proper in all the circumstances of the case and if not, whether the filing of the 2nd and 3rd defendants/applicants joint Statement of Defence is not a fresh step waiving any irregularity in the service of the originating processes? 3. Whether the provisions of Section 2(a) of the Public Officers Protection Act can be applicable to the facts and circumstances of this case and whether the claim is statute barred? In arguing issue one whether the Notice of preliminary Objection is not defective and incompetent and therefore liable to be struck out for non-compliance with Order 5 rule 2(2) of the National Industrial Court Rules 2007, Order 11 Rule 1(3) of the National industrial Court of Nigeria Practice Direction, 2012 and the rules of pleadings, counsel urged the court to resolve this issue in the negative and dismiss the Notice of Preliminary Objection. He drew the court’s attention to the provisions of Order 11 Rule 1(3) of the National Industrial Court of Nigeria Practice Direction, 2012 which provides thus: “I(3) Every notice (e.g Notice of preliminary Objection) shall be accompanied with a Written Address, and shall similarly be served within 5 days of filing”. According to Counsel, a cursory look at the endorsements on the Notice of Preliminary Objection in this case will readily show that the same was filed in the registry of this Honourable Court at 9.30 am on the 18th day of November, 2014 and was only served on the claimant/respondents’ Counsel on the 27th day of November, 2014 at about 3.54pm. The length of time from 18/11/2014 to the 27/11/2014 is about 9 days which is far in excess of the 5 days stipulated in the aforesaid Practice Direction of this Honourable Court within which the process “shall” be served. Thus, there has been total non-compliance by the Applicants with this mandatory provision by their failure and neglect to serve the Notice of preliminary objection on the claimant/respondent within 5 days from the date it was filed and this vitiates the objection and renders same liable to be struck out. This is all the more so as the Notice of Preliminary Objection is also not in compliance with the Provisions of Order 5 Rule 2(1) & (2) of the National Industrial Court rules 2007 which provides thus: “2(1) An application to set aside for irregularity any step taken in the course of any proceedings, may be allowed where it is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity. (2) An application under this rule may be made by summons or motion and the grounds of objection shall be stated in the summons or notice of motion”. From the endorsement on the face of the Notice of Preliminary Objection in this case, it is clear that the 2nd and 3rd defendants/applicants have purported to bring this application pursuant to the said Order 5 Rule 2 of the Rules of this Honourable Court reproduced above but they have woefully failed to comply with the said provision by either filing a “summons or motion” on which the grounds of the objection shall be stated. What they did is to file a mere Notice of Preliminary Objection which is not contemplated by the rules and which is not provided for under the rules for the purpose. Counsel submitted that the necessary implication of this non-compliance with the clear and specific mandate of the rules is that the application is defective and incompetent for the purpose of setting aside any perceived irregularity in the service of the originating processes. This is because where a statute or rule of court has stipulated the particular mode and method of doing an act, any other mode or method not in compliance with that rule is incompetent and liable to the struck out by the court. See Orakul Resources Ltd. vs. Nigerian Communications Commission (2007) All FWLR (Pt. 390) 1482 @ 1507 paras C – D where the Court of Appeal per Peter Odili JCA (as he then was) clarified the position of the law and held thus: “If a law or a rule of practice prescribes that proceedings in respect of a particular cause of action shall be commenced by one method, a litigant would be wrong to commence the proceedings in respect of that particular cause of action by any other method. See Kankara vs. Cop. (2002) 13 NWLR (Pt. 785) 596; Obajinmi vs. Attorney General Western Nigeria (1968) NWLR 96. The rules of court must, prima facie be obeyed and the courts have inherent jurisdiction to ensure compliance with rules by litigants. The court can strike out any process not filed in accordance or in compliance with the relevant rules. See Kankara vs. Cop. (2002) 13 NWLR (Pt. 785) 596.” In the instant case, the rules of court require the filing of a summons or a motion on notice praying for the setting aside of any perceived irregularities in the proceedings but no such summons or motion has been filed by the applicants. The Notice of Preliminary Objection not being a summons or motion on notice as required by the rules of court is therefore incompetent for the purpose of seeking to set aside proceedings and steps already taken in this case on the grounds of alleged irregularity. See Attorney General Bendel State vs. Attorney General Federation (1981) 10 S.C. (REPRINT) 1 @ 88 where in discountenancing a similar application which was similarly in clear violation of Order 2 Rule 2 of the English Rules of Supreme Court 1965 (which is in pari-materia with the instant rules) the Supreme Court held per Obaseki JSC thus: “The provisions of Order 2 Rule 2 set out above affords a complete and effective answer. There was no application by summons or motion on notice of which containing the grounds of objection was given to the plaintiff filed in court. Even if there had been a summons or motion filed, as the party applying through his counsel has taken several steps and filed counter affidavits and tendered documents admitted as exhibits in the proceedings, the application is incompetent and cannot be entertained. (see Johnson vs. Aderme 13 WACA 287-298; Adejumo vs. Governor of Lagos State (1970) 1 All NLR 183 @ 185”. Counsel commended the above decisions to the Court as binding judicial precedents which represent the judicial exertions of the superior courts as to the correct position of the law and urged the court to follow and be bound by them in the true spirit of stare decisis and accordingly find that the Notice of Preliminary Objection of the 2nd and 3rd defendants/applicants is incompetent and cannot be entertained or allowed by this Court as they did not file any summons or motion and have also taken steps in this matter including filing a memorandum of appearance and a Statement of Defence after becoming aware of the alleged irregularity. Aside from the foregoing and as an adjunct point to the incompetence of the Notice of Preliminary Objection, Counsel pointed out that by filing the 2nd and 3rd defendants/applicants joint Statement of Defence, issues have been joined in this matter. It is very instructive and fundamental to note that the applicants did not complain about any alleged irregularity in the mode or form of service on them of the originating compliant in any of the 13 paragraphs of their said joint Statement of Defence filed on 18th November, 2014. Counsel submitted that the implication of this state of affairs is that no issue has been joined by the parties to this case by their pleading on the issue of alleged irregularity of service and as such, that issue cannot be raised by any of the parties in this case because the law is well settled that both the court and the parties are bound by the pleadings and cannot go outside the issues joined therein to raise objections. See T.O. M.C Nig. Ltd. vs. U. T. C. Plc. (2003) FWLR (Pt. 173) 130 @ 152 – 153 paras E and C where the Court of Appeal per Obadina JCA clarified the position of the law and held as follows: “The law is settled that once pleadings are ordered, filed and exchanged by the parties, the parties and the court are bound by the pleadings so filed. Evidence must be led in accordance with the pleadings, and evidence led not in conformity with the pleadings filed, and/or upon facts not pleaded goes to no issue…. Once the Defendant filed a Statement of Defence against the claim of the plaintiff, the parties and the court are bound by the pleadings and any issue not pleaded by the defendant in the statement of defence cannot be raised by way of objection. The motion on notice raising the issue is no substitute and the affidavit evidence, be it documentary, in support of such motion goes to no issue”. The 2nd and 3rd defendants/applicants in this case have filed and served their joint Statement of Defence but they did not raise any complaint of irregular service their-in or plead facts to suggest or show that they have suffered any prejudice by the particular mode or method of service adopted in this case. They filed a 13 paragraphs Statement of Defence on the merits of the claim and now seek to surprise the claimant by this Preliminary Objection on an issue which is not joined in the pleadings. Counsel submitted on the above authority that the said Objection is incompetent for springing a surprise contrary to the established rules of pleadings. He urged the Court to resolve issue No. 1 accordingly in the negative, and to hold and come to the conclusion that the Notice of Preliminary Objection of the 2nd and 3rd defendants/applicants is defective and incompetent for non-compliance with the rules and practice directions of this Court as well as the rules of pleadings and accordingly dismiss same with substantial costs against the applicants. In arguing issue two whether the service of the originating compliant and its accompanying processes on the 2nd and 3rd defendants/applicants in this case is proper in all the circumstances of the case and if not, and whether the filing of the 2nd and 3rd defendants/applicants joint statement of defence is not a fresh step waiving any irregularity in the service of the originating processes, counsel recalled that the principal grouse of the 2nd and 3rd defendants/applicants under issue no. 1 as formulated and argued by them in the written address in support of their Notice of Preliminary Objection is that the service of the originating complaint in this case on them by delivering same to the chambers of the Honourable Attorney General of Rivers State wherein it was received by one Mr. P.K. Kagbara, an Executive Officer in the employ of the Rivers State Government, is not personal service on both the Attorney General of Rivers State and the Governor of Rivers State who ought to be served personally and therefore the service should be set aside. Reliance was placed on the provisions of Order 6 Rule 3 Order 7 Rule 1(1) of the rules of this Court and the cases of Kida vs. Ogunmola (supra); Ononye vs. Chukwuma (supra) and Mark vs. Eke (supra). In response Counsel submitted that this argument of the 2nd and 3rd defendants is rather pedestrian and most misconceived. In the first place, it is clear beyond argument that since the 2nd and 3rd defendants/applicants are not natural persons but are rather artificial legal entities created by law, they cannot be served with court processes personally, in the ordinary sense of the word as required by Order 7 Rule 1(1). Quite to the contrary, they can only be served by leaving the process at their office and through the human agents in their employ and under their control as provided for in Order 7 Rule 8 of the National Industrial Court rules 2007 which provides thus: “Where a Minister or Commissioner, or the Attorney General or the director of Public Prosecutions, or any other public officer of the federal Republic of Nigeria or of a state thereof is a party ex-officio or as representing the federal or State Government, as the case may be, in any proceedings in the court, any notice or other document may be served on him or her by leaving it at or by sending it by registered post or courier service to his or her chambers or office and service in this manner shall be as effective as if it were personal service”. It follows from this specific provision of the Rules that Order 7 Rule 1(1) does not apply to the dignitaries, persons and institutions listed in Order 7 Rule 8 because the express mention of one thing in a provision excludes those not mentioned. The principle of law is clear that in the construction and interpretation of statutory or other provisions, general provisions in a legislation do not extend to those things which are specifically provided for in the same or other legislation. This is expressed in the Latin maxim as: Generalis clausula non porrigitur ad ea quae antea specialiter sunt comprehensa. In Federal Mortgage Bank of Nigeria vs. P. N. Olloh (2002) 4 S.C. (Pt. II) 117 @ 122 – 123 the Supreme Court clarified the meaning, scope and application of the said maxim when it held per the lead judgment of Uwaifo, JSC as follows: “The Latin maxim is: Generalis clausula non porrigitur ad ea quae antea sspecialiter sunt comprehensa (Ageneral clause does not extend to those things which are before specially provided for). In Bamgboye vs. Administrator General (1954) 14 WACA 616, Bairamian, J. explained the principle when he observed at P. 619 as follows: “It is an accepted canon of construction that where there are two provisions, one special and the other general, covering the same subject matter, a case falling within the words of the special provision must be governed thereby and not by the terms of the general provision. The reason behind this rule is that the legislature in making the special provision is considering the particular case and expressing its will in regard to that case; hence the special provision forms an exception importing the negative; in other words the special case provided for in it is excepted and taken out of the general provision and its ambit; the general provision does not apply. In the words of Lord Selbourne L.C., in Seward vs. Vera Cruz (1884) 10 App. Cas. 59 @ 68; ‘Now if anything be certain it is this, that where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold the earlier and special legislation indirectly repealed, altered or derogate from merely by force of such general words, without any indication of a particular intention so to do’… The above rule of construction applies equally, of course, when the special and the general provisions are enacted in the same piece of legislation: see DRYDEN V. OVERSEERS OF PUTNEY (1876) 1 Exch. 223 @ 232”. Applying the foregoing principles of law to the facts and circumstances of this case, it becomes easy to see that the provisions of Order 7 Rule 1(1) are general provisions relating generally to service of processes while those of Order 7 Rule 8 are special provisions relating specifically to the service of processes on the categories of persons listed therein, which includes the 2nd and 3rd defendants/applicants in this case. That being the cause, there can therefore be no question of serving the 2nd and 3rd defendants personally because service by delivery to their office or through their agents is “effective as if it were personal service” under Order 7 Rule 8 of the Rules of this court. As it relates to the further argument that the claimant failed to comply with the provisions of Order 6 rule 3 of the Rules of this Court and that the said provision is mandatory by reason of the use of the word “shall” in the provision, Counsel for the Claimant submitted that the argument fails to take into account the fact that the duty imposed by the said Order 6 rule 3 is imposed on the Registrar of the court to “arrange for service of a copy of the originating process and accompanying documents on each defendant or respondent” and not on the claimant. Thus, even where there is a failure on the part of the Registrar to comply with the said provision in the discharge of his duties, such failure if at all, cannot be visited on the claimant or be the basis for voiding or vitiating the claimants case when he has done all that he is required to do under the law to file his case and bring it before the court for adjudication. The position of the law is well settled that parties to litigation cannot be punished for the failure or mistake of the registry of the court. See Anyanwoko vs. Okoye (2010) 1 S.C. (Pt. II) 30. In any case, there is no dispute that the interest of the 2nd and 3rd defendants are one and the same in the subject matter of this suit and that they were sued together as representing the Government of Rivers State. They can quite properly be served through the office of the Attorney General of Rivers State as was done in this case and there is nothing sinister or wrong with that. Service on the Attorney General of a State for the Governor of the State is good service. See Dr. Olusegun Agagu vs. Mr. Akin Esanmore & 4 Ors. LER (2008) CA/A/122/07 @ page 8 where the Court of Appeal per Mary U. Peter-Odili, JCA (as he then was) in confirming this position of the law highlighted the difficulties of effecting personal service on the person of a Governor and held thus: “Having stated the principles applicable above it is not disputed that the appellant Dr. Agagu is currently the governor of Ondo State and that being the case, service where it is provided to be personal on him if made on the Attorney General of Ondo State as has taken place here is good service. This is so because it is near impossible for any party or bailiff to have that direct access to a Governor of any State as to meet the strict requirement of personal service. To insist on that direct person to person service between bailiff and a Governor would in effect mean that whenever a governor is sued such a process can be taken as dead in the light of the impossibility of personal service. That certainly cannot be the intendment of the framers of our Law nor can the process of justice delivery be carried out as provided by our Constitution or our practice of the rule of law. I would want to anchor on the case of: Chrisdom Ind. Co. Ltd vs. A.I.B. Ltd (2002) 8 NWLR (Pt. 768) 152 @ 178 per Ubaezonu JCA. “Justice cannot be sacrificed on the altar of form. The era of extreme technicality in our courts at the expense of justice is gone. This, although the rule of court stands as a guide to the court in conducting court business, the court must not hold in as a “mistress” but as a “handmaid”. From all that I have said I am satisfied that I can safely go along the views of the 1st – 4th respondent’s counsel that proper service was made when the service of the process in this instance the Originating Summons was effected on the Attorney General of Ondo State and for the purpose of the alter ego Dr. Agagu, the Governor. Therefore I answer this issue in favour of the 1st – 4th respondents and in the affirmative”. Counsel for the Claimant pointed out that it is the further argument and contention of the applicants under their issue no. 2 that although the 2nd and 3rd defendants/applicants are corporate entities by virtue of Sections 195 and 192 of the 1999 Constitution, as amended, who cannot be served personally, they ought to be served in conformity with Order 7 Rule 6 of the rules of this Honourable Court by delivering the process to a Director, Secretary, Trustee or other Senior, Principal or responsible officer of the organization or by leaving it at the registered, principal or advertised office or place of business of the 2nd and 3rd defendants/applicants. They claim that Mr. P. K. Kogbara, the Executive Officer of the 3rd defendant/applicant who received the originating processes in this case does not fall into any of the above categories of persons outlined in Order 7 Rule 6 of the rules of this court and as such the service is irregular and should be set aside. Reliance was placed on the unreported ruling of the High Court of Rivers State Coram B.A Georgewill (Judge) in Suit No PHC/1205/2012: Mr. Tami T. Adu vs. The Governor of Rivers State & 2 Ors. Delivered 10th December, 2012. In response, Counsel submitted that this argument is rather startling and alarming especially as it is coming from the office of the Honourable Attorney General of a State of the Federation. How is it that the office of the Honourable Attorney General can brazenly submit before a court of law that an Executive Officer in its employ (Mr. P. K. Kagbara) does not fall into the category of “responsible officer of the organization” beats the imagination! Does the State have “irresponsible” people working for it? To think that this same Executive Officer continues to work in that establishment for the Rivers State government and continues to receive court processes since 2012, when Suit No. PHC/1205/2012 was filed and served on him, only for the office of the Attorney General to proceed from one court to another complaining that service on him is improper service, leaves a rather sour taste in the mouth. Who put that individual in charge of receiving processes and why is it always convenient to deny service received through him? Is this a case of institutional artifice on the part of the State? There are certainly more questions than answers. Be that as it may, according to the Claimant, the totality of the applicants argument comprised under their said issue no.2 is erroneous and misconceived because Order 7 Rule 6 of the rules of this Court does not apply to this case but rather it is Order 7 rule 8 that applies to the 2nd and 3rd defendants/applicants. This is because as argued above, the general provisions in the rules of court relating to service of processes on companies and corporations generally is superseded and over-ridden by the special provisions in Order 7 Rule 8 dealing specifically with service on public functionaries sued ex-officio and as representing the State Government, as is the situation in this case. See Fed. Mortgage Bank of Nig. vs. P.N. Olloh (supra). To the Claimant, the applicants have totally misconceived the applicable provisions of the rules of court in this case and their submissions are therefore non-sequitur. The unreported ruling of the High Court of Rivers State relied upon by the applicants cannot avail them in this case. Aside from the fact that the same is not a binding precedent or judicial authority applicable in this court, being that it is the ruling of a court of coordinate jurisdiction, the said ruling is inapplicable to the facts and circumstances of this case because the interpretation in that ruling was based on the provision of Order 7 Rule 9 of the Rivers State High Court Civil Procedure Rules 2010 which provides thus: “9. Subject to any statutory provision regulating service on a registered company, corporation or body corporate, every originating proves or other process requiring personal service may be served on the organization by delivery to a director, secretary, trustee or other senior, principal or responsible officer of the organization, or by leaving it at the registered, principal or advertised office or place of business of the organization within the jurisdiction: Provided that where service cannot be effected as required above, the Judge may upon application by the claimant make such Order for substituted service as he deems fit”. Counsel submitted that this provision is akin to the provisions of Order 7 Rule 6 of the National Industrial Court Rules 2007 which counsel has demonstrated above does not apply to the 2nd and 3rd defendants/applicants who are public functionaries sued ex-officio and as representing the Rivers State government. Thus the unreported ruling of B.A. Georgewill (Judge) construing and interpreting the above provision cannot apply in this case where the applicable provision of the rules of court is Order 7 Rule 8 which is radically different from those considered and pronounced upon in that ruling. The law is well settled that a decision cannot be a binding or persuasive precedent in another case unless the material facts and applicable laws are the same or a least very similar. See: Anaedobe vs. Ofodile (2001) FWLR (Pt. 45) 718 @ 732 para. F – C; Okafor vs. Nnaife (1987) 9 – 10 SCNJ 63 @ 70. According to counsel, aside from the foregoing, the additional point must be made that the whole essence and purpose of service of court process on a person is to bring the proceedings to his notice and thereby afford him an opportunity to take necessary steps in the matter if he so desires. It is not to set up obstacles or a clog in the wheels of justice or to afford a devious defendant an opportunity to dribble the plaintiff and frustrate his quest for justice. Once it is shown that a defendant has had notice of the proceedings against him and has even taken steps to appear in the matter to defend himself, any irregularity as to service is deemed waived as the defendant is said to have submitted to jurisdiction. See Nitel Plc vs. I.C.I.C (Directory Publishers) Ltd. (2009) 16 NWLR (Pt. 1167) 356 @ 385 386 where the Court of Appeal per Omoleye JCA confirmed this position of the law and held thus: “the purpose of service of process whether personal or substituted is to give notice to the other party on whom service is to be effected so that he may be aware of and able to resist if he may, that which is sought against him. It also gives the court the necessary jurisdiction over a party. Otherwise a court has no jurisdiction over a party who has not been served unless he otherwise submits to the court’s jurisdiction. Logically, the best proof of service of process on a party is the presence of the person on whom the process was actually meant to be served”. In the instant case, the 2nd and 3rd defendants/applicants have entered an appearance by a counsel of their choice and filed joint Statement of Defence in opposition to the claim. In other words, they have appeared in the matter and thereby submitted to the jurisdiction of this court by their presence, which is the best proof that the have notice of this case and are fully aware of the nature of the claim against them. It will therefore be preposterous to set aside the said service on them merely because they were served through an employee or agent who did in fact bring the process to their notice only to direct the claimant to embark on the needless rigmarole of serving them afresh by substituted or other means, which will serve no useful purpose. We pray in aid Rivers State Government of Nigeria vs. Specialist Konsult (2005) 2 S.C. (Pt. 1) 121 @ 129 – 131 where the Supreme Court held per the lead judgment of Ejiwunmi, JSC as follows: “The first point made by counsel is that it must be noted that Port Harcourt is the capital city of Rivers State and that is where the Chief Law Officer of the State and Commissioner for Justice of the Government has his offices and it is also the seat of Government. And submits that though the Rivers state Government has a property at Bishop Oluwole Street, service of processes in respect of this matter on a person called Mrs. Marcus in an office in that building cannot by any stretch of imagination be proper service on the government and the Attorney General. It is my respectful view that the first question that must be determined in this appeal is, whether the appellants were properly served… The question that agitates my mind is not whether the appellants failed to defend the action upon being served as held by the lower court, but whether there was satisfactory evidence of such service on each of the appellants as required by Order 60. It is my humble view that my reading through the proceedings of the trail court has not revealed to me that though it was claimed that processes were served on one Mrs. Marcus at the Rivers State Liaison Office at 26 Bishop Oluwole Stree, Victoria Island, Lagos, there is no evidence, such as an affidavit in this regard to prove that each of the appellants were served in the records. Further, though it was not satisfactorily established that service was effected by an affidavit as observed, it is in any event now settled that where a service is effected in the Liaison Office, it is presumed that service was properly effected. It must be noted that in several of the cases that had been brought to this court, parties were apparently served through the Liaison Offices of their various States and they duly responded to such service without taking any exception to the fact that they were served through their State Liaison Offices. See Attorney General of Ondo State v. Attorney General of the Federation & 35 Ors. (2002) 6 S.C. (Pt. 1); (2002) 9 SCM 1; Alhaji Mohammed Dikko Yusuf & Anor v. Chief Olusegun Aremu Okikiola Obasanjo & 56 Ors (2003) 9 – 10 S.C. 53, (2003 11 SCM 167 and Attorney General of the Federation vs. Attorney General of Abia State & 35 Ors. (2002) 4 S.C. (Pt. 1) 1, (2002) 6 SCM 1. In the instant case, there is uncontradicted evidence that the appellants were served at No. 26 Bishop Oluwole Street, the Liaison Office of the Rivers State government at the time. The only reasonable inference that can be raised is that the appellants were duly served at the said Liaison Office, No. 26 Bishop Oulwole Street, Victoria Island, with the court processes as claimed by the respondent. I must therefore resolve this issue against the appellants”. In his own contribution to the judgment, Niki Tobi JSC in his characteristic penchant for lucidity explicitly stated the position of the law when he held at page 136 to 137 of the report as follows: “let me also deal with the issue of service as it affects the jurisdiction of the court. The essence of service in our procedural or adjectival law is to ensure that the party put on notice of the pending litigation, and this can be achieved through a liaison office. The word “liaison” means a working association or connection, to ensure that each side is well informed about what the other is doing. Communications are usually sent through liaison offices to their State Governments in name cities and towns. Can the 1st appellant really argue that it has never received any communication by way of letters and all that through the Lagos liaison Officer? Why should a writ of summons be different? The point raised by learned Senior Advocate for the appellants sounds rather technical and abstract. With respect, I do not agree with him that service on the liaison office of the 1st appellant is not personal service. The liaison office is clearly an administrative arm of the 1st appellant and service can be effected through it. I am of the view that service on the liaison office of the 1st appellant, if there is service at all, is proper personal service on the appellants. And I so hold”. It is instructive that it is the same State Rivers State Government and its Attorney General in the above matter that are again disputing proper service in the instant case where the originating processes were actually served on them in the chambers of the Hon. Attorney General in the Rivers State Ministry of Justice, State Secretariat Complex, Port Harcourt, which is one of the administrative arms of the Rivers State Government. To counsel, the said service is good and proper personal service and we urge this Honourable Court to so hold and dismiss this preliminary objection. In any case, even if there was any irregularity in the service on the 2nd and 3rd defendants/applicants, which is not conceded, we will submit further that the same had been waived by the fresh steps taken by them after becoming aware of the alleged defects, particularly by the act of filing a memorandum of appearance and a joint statement of defence in the matter. These steps constitute a waiver of the right to complain. See Miss Oluchi Anyanwoko vs. Chief Mrs. Chirsty Okoye (2010) 1 S.C. (Pt. 11) 30 where the Supreme Court per Fabiyi JSC stated the law and held thus: “The next issue is whether the filing of a counter affidavit and a further affidavit by the defendant/applicant after the service of the origination summons on her amounted to taking steps in the proceedings to constitute waiver of her rights. The learned trial judge found that the steps taken by the 1st defendant in filing a counter affidavit and a further affidavit after becoming aware of the irregularity complained of amounted to waiver of her rights to complain about the defect in the originating summons. The court below maintained the same poise. I am of the considered view that they were right. For where a party is aware of non-compliance or where a writ is defective it is the duty of the party to act timely to apply to strike out the suit before taking any further step in the proceedings. When the appellant noticed the surmised irregularity, he should have taken the necessary steps to avoid being roped by what is often referred to as waiver which is defined in Black’s law dictionary, 5th edition as the intentional or voluntary relinquishment of a known right; the renunciation, repudiation, abandonment or surrender of some claim, right, privilege or the opportunity to take advantage of some defect, irregularity of wrong. Atlas life Insurance Co. vs. Schrimsher 179 OKL 643, 66 page 2d 944, 984. See NWOYE v. NIGERIAN ROAD CONSTRUCTION LTD. (1966) NMLR 254. Perhaps I should further say it that irregularity can certainly be waived. If the beneficiary fails to raise objection timely, he will be deem to have waived his right See: Katsina Local Government v. Makudama (1971) NSCC 119 @ 124; Nnonye v. Anyichie (2005) 2 NWLR (Pt. 910) 62 J @ 647; 666, Ariori v. Elemo (1983) 1 SC 13. In short, as the appellant fialed to act instantly on the surmised irregularity pinpointed by her, she is deem to have waived her right. She should not approbate and reprobate at the same time. The issue is resolved against her”. The final point must however be made that there is an affidavit of service deposed by the Bailiff of this Honourable Court evidencing the fact that the 2nd and 3rd defendants/applicants have been duly served with the originating processes in this case. That affidavit of service forms part of the records of this Court which the court is duty bound to take judicial notice of pursuant to section 122(2)(m) of the Evidence Act 2011. The 2nd and 3rd defendants/applicants who are disputing proper service by this Notice of Preliminary Objection have not filed any counter affidavit in rebuttal to show that they have not been served or served properly as required by law. The implication of this is that the Bailiffs affidavit of service remains unchallenged and this Honourable Court is duty bound to uphold it and act on it as true and correct because the law is settled that the only way of challenging an affidavit of service sworn to by the bailiff is to file a counter affidavit in rebuttal and a failure in that regard means that the bailiffs affidavit remains unchallenged. See International Bank for West Africa vs. Fola Sasegbon LER (2007) CA/L/457/2005 @ page 11 – 12 where the Court of Appeal per Galinje JCA clarified the position of the law and held in very similar circumstances as in this case, thus: “Finally on the issue of service, the only way of challenging an affidavit of service sworn to by the bailiff is to file a courter affidavit in rebuttal. In Fatokun v. Somade (2003) 1 NWLR (Pt. 802) 431 @ 447 para. F – 11, this court, per Admu JCA said:- “Where there is proof of service on a party by means of an affidavit of service sworn to by a bailiff or an officer of court, the only recommended and acceptable way of challenging or rebutting the presumption of such service by the party concerned is by filing of a counter affidavit to controvert the affidavit of service. The failure by the appellant to file such a counter affidavit is fatal to his case and his oral argument on the hearing date that he was not served with the motion and other processes in the suit cannot avail him”. In the instant appeal, the bailiff’s affidavit of service dated 9th December, 2003 has not been rebutted. Instead of filing a counter affidavit, the appellant filed a notice of preliminary objection supported by affidavit praying the court to set aside the Form 48 Notice on the ground of improper service. Since the affidavit of service has not been effectively challenged, it remains valid and the appellant was therefore properly served”. No such counter affidavit has been filed in this case but instead, the 2nd and 3rd defendants/applicants have merely filed a notice of preliminary objection supported by affidavit praying the court to set aside the service on them. This was the exact same situation in the International Bank for West Africa vs. Fola Sasegbon(supra) case cited above and the Court of Appeal had no difficulty in dismissing the preliminary objection and upholding the Bailiff s affidavit of service which remained unchallenged and came to the conclusion that the appellant therein was properly served. Counsel commended the said judicial authority as a judicial precedent which is binding on this Court and urged the court to follow it in the true spirit of stare decisis. We urge that issue No. 2 as formulated above be resolved accordingly in favour of the claimant and this preliminary objection be dismissed with substantial costs against the 2nd and 3rd defendants/applicants. In arguing issue three whether the provisions of Section 2(a) of the Public Officers Protection Act can be applicable to the facts and circumstances of this case and whether the claim is statute barred, counsel for the Claimant submitted that the principal grouse of the 2nd and 3rd defendants/applicants under issue no. 3 as formulated and argued by them in their Written Address in support of the Notice of Preliminary Objection is that the claimants suit was filed more than 3 months next after the act, neglect or default complained of and is therefore statue barred by virtue of the provisions of Section 2(a) of the Public Officers Protection Act. They relied on the cases of Ibrahim vs. J.S.C (supra), Begbe vs. Alhaji (supra) and Ntuks vs. NPA (supra). In response, it is the submission of Counsel for the Claimant that this argument is erroneous in fact and most misconceived in law. To demonstrate this, counsel emphasized that since the 2nd and 3rd defendants/applicants have challenged the competence of this suit on the ground that the same is statue barred, the necessary implication is that they are deemed, for purposes of the consideration of the said preliminary objection, to have admitted all the averments of fact in the claimants Statement of Claim and the same is to be taken as established as true by this Honourable Court. See Ayanboye vs. Balogun (1990) 5 NWLR (Pt. 151) 392 @ 407; Woherem vs. Emereuwa (2004) 13 NWLR (Pt. 890) 398 @ 419 para C. In this regard, the 2nd and 3rd defendants/applicants are not therefore entitled or permitted to supplement or augment the pleadings by affidavit evidence. The court is bound to consider only the pleadings of the claimant to determine when the cause of action arose, which limitation law is applicable and whether the claim is statute barred. See Egbe vs. Adefarasin (1987) 1 NWLR (Pt. 47) 1 @ 20 para. G – H; Woherem vs. Emereuwa (2004) All NWLR (Pt. 221) 1570 @ 1581 -1582 para. G – A. Against this background, counsel invited the court to look at the Statement of Facts Establishing the Cause of Action filed by the claimant in this case which show clearly in paragraphs 4, 6, 8, 9, 15 and 19 thereof that the subject matter of this suit against the defendants is a claim for work and labour done by the claimant as a Public and Political Office Holder in his capacity as Secretary to the 1st defendant for which he is entitled to be remunerated and paid salaries and allowances as per the Rivers State Public and Political Office Holders’ salaries, Allowances and Fringe Benefits Law, No. 4 of 2002.see particularly reliefs 1, 2, 3 (a)-(e), 4, 5 and 6 as sought by the claimant in paragraph 19 of the Statement of Claim. That being the case, the pertinent question is, does the Public Officers Protection Act apply to this case? Counsel submitted that it does not, and urged the Court to so hold and dismiss this preliminary objection. This is because the law is well settled that section 2(a) of the Public Officers Protection Act does not apply to claims or cases of recovery of land, breaches of contract, claims for work and labour done, among others. The authority for so saying is the case of C.B.N v. Adedeji (2004) 13 NWLR (Pt. 890) 226 @ 245 – 247 where the Court of Appeal per M.D. Muhammed JCA relying on the decisions of the Supreme Court on the issue stated the law as follows: “The fundamental question raised by the appellant when it contended at the lower court that respondents action was “statute-barred” was whether in view of the Public Officers Protection Act, Cap. 379, Laws of the federation, 1990 the lower court had the jurisdiction to entertain the suit. The straight answer is that the court had the necessary jurisdiction. The respondents were on firm terrain because the privilege provided by the Public Officers Protection Act does not apply to contract cases. Respondents cause of action certainly was founded on the breach of the contract of employment they had with the appellant. In the case of the Nigerian Ports Authority vs. Construzioni Generali Farsura Cogefur SPA and Anor. (1974) 1 All NLR (Pt. 11) 463 the Supreme Court while interpreting section 97 of the Ports Protection Act which is in pari material with section 2 of the Public Officers Protection Act, held that the law was not intended to apply to contracts. In the said decision the Supreme Court per Ibekwe, JSC held as follows: “we shall now deal with the other point which to our minds, does not seem to be well settled, namely whether the kind of statutory privilege which we have been considering is applicable to an action founded upon a contract. In other words, whether Section 97 of the Ports Act applies to cases of contract. We think that he answer to the question must be in the negative. We agree that the section applies to everything done or under the powers granted by the Act. But we are not prepared to give the section the stress which it does not possess. We take the view that the section does not apply to cases of contract. The learned Chief Justice, in deciding this point, made reference to the case of Salako vs. L.E.DB. & Anor. 20 NLR 169 where de Commarmond, SPJ, as he then was, construed the provision of section 2 of the Public Officers Protection Ordinance which is almost identical with section 97 of the Ports Act, and thereafter stated the law as follows: “I am of the opinion that section 2 of the Public Officers Protection Ordinance does not apply in cases of recovery of land, breaches of contract, claims for work and labour done, etc”. We too are of the opinion that de Commarmond, SPJ, had quite rightly stated the law in the passage of his judgment cited above …” It is clear from the foregoing that respondents right of action and access to relief cannot be extinguished on the basis of the Public Officers Protection Act branded by the Appellant. We are all bound by the quoted decision.” Also, in the case of F.G.N. vs. Zebra Energy Ltd. (2002) 18 NWLR (Pt. 798) 162 @ 196 – 198 the Supreme Court confirmed and upheld its earlier decision in the Nigerian Ports Authority vs. Construzioni Generali Farsura Cogefur SPA and Another (supra) case. At page 195 of the report (edited as ration 20), the court, per Mohammed JSC, re-affirmed that the correct position of the law is that: “The Public Officers Protection Act was not intended by the legislature to apply to contracts. The law does not apply in cases of recovery of land, breaches of contract or for claims for work and labour done”. Counsel urged the Court to follow the decision of the Supreme Court in F.G.N vs. Zebra Energy Ltd (supra) as it is the current position of the law and constitutes a binding precedent under the principles of stare decisis. The court is urged to come to the conclusion that the Public Officers Protection Act does not apply to cases founded on claims for work and labour done by the claimant, as in this case. According to Counsel, the second reason for the Claimant’s contention that the Public Officers Protection Act does not apply to the facts and circumstances of this case is that the Act does not apply to or protect public officers or authorities where they act maliciously or outside the colours of their statutory or constitutional duties or outside the enabling law. The authority for so saying is the case of Ibrahim vs. J.S.C. (1998) 14 NWLR (Pt. 584) 1 @ 32 para. D – E where the Supreme Court per Iguh JSC clarified the position of the law and held as follows: “It can therefore be said that Section 2(a) of the Public Officers (Protection) law, 1963 gives full protection or cover to all public officers or persons engaged in the execution of public duties who at all material times acted within the confines of their public duty. Once they step outside the bounds of their public authority and are acting outside the colour of their office or employment or outside their statutory or constitutional duty, they automatically lose protection of that law”. In the instant case, part of the facts which the 2nd and 3rd defendants/applicants are deemed to have admitted by operation of law for the purposes of this application is the allegation that they acted outside the confines of the law i.e. maliciously and with bias against the claimant/respondent in procuring the stoppage and continued refusal to pay his salaries, allowances and other perquisites of office. The claim against the 2nd and 3rd defendants/applicants is that they acted outside the colours of their statutory and constitutional duties and were actuated by malice, malevolence and spite against the claimant and other members of the Executive Committee of the 1st defendant in tampering with their tenure of office and procuring the stoppage and continued refusal to pay their salaries, allowances and other perquisites of office. See Paragraphs 4, 12, 13 and 18 of the Statement of Facts Establishing the Cause of Action. Thus, even if the Public Officers Protection Act were to apply to cases founded on a claim for labour and work done by the claimant, it will still not apply to protect the 2nd and 3rd defendants/applicants in all the circumstances of this case particularly in the light of those facts, which if proved, will take the matter out of the purview of the Public Officers Protection Act. In the face of those pleaded facts, the action can be maintained against the defendants outside the three months limitation period stipulated by the Public Officers Protection Act. See Ibrahim vs. J.S.C. (1998) 14 NWLR (Pt. 584) 1 @ 32 paras. E – F where the Supreme Court per IGUH JSC confirmed this position of the law and held as follows: “In other words, a public officer can be sued outside the limitation period of three months if at all times material to the commission of the act complained of, he was acting outside the colour of his office or outside his statutory or constitutional duty. Counsel urged the urge this court to resolve issue No. 3 against the 2nd and 3rd defendants/applicants and dismiss this preliminary objection with substantial costs against the 2nd and 3rd defendants/applicants and proceed to determine this matter on its merits. In the final analysis, counsel for the claimant urged the Court to dismiss the Notice of Preliminary Objection filed by the 2nd and 3rd defendants/applicants for the following reasons, among others already highlighted above in this Written Address, namely: i. The Notice of Preliminary Objection filed by the 2nd and 3rd defendants/applicants is defective and incompetent for non-compliance with the rules of this Honourable Court as well as the rules of pleadings. ii. That the courier service of the originating compliant and its accompanying processes on the 2nd and 3rd defendants/applicants by the Bailiff/Officer of this Honourable Court is good and proper personal service on the 2nd and 3rd defendants. iii. That the purpose of service of process whether personal or substituted is to give notice to the other party on whom service is to be effected so that he may be aware of and able to resist if he may, that which is sought against him. iv. That having become aware of this proceedings and taken appropriate steps including entering appearance by Counsel of their choice and filing their joint Statement of Defence, the 2nd and 3rd defendants have waived any right to complain, if at all, about improper service of the originating processes. v. That the Public Officers Protection Act does not protect public officers who have acted outside the colour of their statutory or constitutional duties and also does not apply to cases founded on contract of employment, recovery of land and claims for work and labour done by the plaintiff, as in this case. The 2nd and 3rd Defendants filed a reply on points of law wherein counsel reacted to the points raised in the Claimants Counter Affidavit and written Address. According to Counsel for the 1st and 2nd Defendants, the Courts have in a plethora of authorities, enjoined courts to determine matters before it on the merits and not cling to mere technicalities as to refuse a party the opportunity of being heard for fear that such attitude might cause a temporary delay in the disposal of the matter would occasion a miscarriage of justice. Counsel went further that it is trite that a Notice of Preliminary Objection is an objection to the regularity of court process. Its primary aim or object is to give notice to the opposing side of the case made thus enabling each party to prepare for arguments upon the issues raised therein. This saves the opposing party (such as the claimant in the instant complaint) from being taken by surprise. See Agbaka vs. Amadi (1998) 11 NWLR (Pt. 572) 16; Ogidi vs. Egba (1999) 6 SCNJ 107. In the light of the above submissions Counsel urged the court to discountenance all of the claimant’s Counter Affidavit and Written Addresses in opposition to the Applicant’s Preliminary Objection as unfounded in law with due respect to counsel for the claimant/respondent Counsel cited the case of Nneji vs. Chukwu (1988) 3 NWLR (Pt. 81) P. 184 @ 206, where it was held thus: “I am not unaware of the stand of this court that “Rules of Court are meant to be complied with”: See Mrs. Olu Solanke vs. Somefun & Anor. (1974) I.S.C. 141. But the principal objects of courts is to decide the rights of the parties and not to punish them for mistakes they may make in the conduct of their cases by deciding otherwise than in accordance with those rights: Cropper vs. Smith (1984) 25 Ch. Div. 700 @ p. 719; University of Lagos vs. Aigoro (1985) 1 NWLR 143 @ p. 154. Also Rules of court are made to be help to the court in its primary duty and objective, namely to do justice to the parties by deciding on the merits of their case. These Rules are mere handmaids to justice and flexibility of the rules will only serve to render justice grotesque. It will therefore be understandable to give effect to rules which will merely enable one party to score not a victory on the merit, but a technical knock – out at the expense of a hearing on the merit: Nishizawal Ltd. vs. Strichand N. Jethwani (1984) 12 S.C. 234 at p. 86. If strict observance of a rule of practice will produce injustices, then a court of justice will naturally prefer doing justice to obeying a rule which no long is an aid to justice”. Also, the law is trite that, except an application is heard on the merit, a court should not strike out same unless is satisfied that the application lacks merit. In the case of Oloruntoba Oju vs. Abdul Raheem (2009) 5 – 6 SC (Pt. 11) 57 @ 81, the Supreme Court held that: “I must repeat the clarion call that the court nowadays denounce judgment by mere technicality. Courts are set up to do substantial justice and in the pursuit of this all forms of technicalities which act as a detriment to the determination of the substantial issues between litigants must be shunned. While recognizing that rules of court should be complied with by parties to a suit, it is also in the interest of justice that parties should be afforded a reasonable opportunity in appropriate circumstances for their claims to be adequately investigated and properly determined on merit”. According to Counsel for the 1st and 2nd defendants, the claimant’s Counter Affidavit and Written Address are merely filed to deny the applicants the reasonable opportunity, in the interest of justice, to present their Preliminary Objection Challenging jurisdiction. Counsel urged the court to resist the temptation offered by the claimant’s said Counter Affidavit and Written Address to prevent the applicants from presenting their Preliminary Objection Challenging Jurisdiction to this court on mere technicalities which should not be allowed to defeat the substantial issues raised by the applicants. Counsel proceeded to react seriatim to the points raised in the Claimant’s Counter Affidavit and Written Address. According to the applicants, in issue 1 paragraphs 3.1 – 3.9 of the claimant’s Written Address, the claimant, through his counsel has raised various technical issues all in his effort to urge this court to lean on technicalities and hold that the applicants’ preliminary objection is defective and incompetent and liable to be struck out for non-compliance with Order 5 Rule 2(2) of this Honourable Court’s Rules 2007, Order 11 Rule 1(3) of this court’s Practice Direction 2012 and the rules of Pleadings. In reaction, Counsel for the applicants urged the Court to discountenance the entire submissions of Counsel for the Claimant for the following reasons: i. Order 5 Rule 1 & 3 of this National Industrial Court Rules 2007 provides a total cure for any perceived/alleged defect, non-compliance with the Rules of this court or its Practice Directions contained in the 2nd and 3rd Defendants’/Applicants’ Notice of Preliminary Objection and enjoins this Court to treat same as an irregularity or even depart from same. He urged the court to so hold. ii. Secondly, in questions of jurisdiction (as raised in the applicants’ Preliminary Objection filed on 18th day of November, 2014) the form and time in which it is raised is irrelevant in law. See the case of Emesim vs. Nwachukwu (1999) 3 NWLR (Pt. 596) 590; Alhaji Usman S. Riruwai vs. Mallam Ibrahim Shekarau & Ors. (2009) All FWLR (Pt. 461) 975 @ 990 para. D. On the basis of the afore legal submission, Counsel urged the court to discountenance in their entirety, the claimant’s Counsel submissions and authorities/case laws cited in paragraphs 3.3 – 3.6 of his Written Address challenging the form and time the applicants’ application challenging Jurisdiction was brought (i.e. by Preliminary Objection and not by Summons or Motion and after filing Memorandum of Appearance etc). This is more so as it is not the rules of court that vests jurisdiction in the court but rather the statute creating the court and the Constitution of the Federal Republic of Nigeria 1999 (as amended). See the case of Dalhatu vs. Turaki (2003) 15 NWLR (Pt. 843) 310 @ 337 – 340, 341 – 343. Counsel went further that the mere fact that one has entered an appearance or unconditionally appears (as the applicants have done in the instant suit) does not mean they have submitted to jurisdiction. See Onyema vs. Oputa (1987) 6 SCNJ 176 at 212. Lines 6 -8 of paragraph 3.6 of the claimant’s Written Address is thus grossly misconceived in law and should be discountenanced. iii. Thirdly, the claimant’s Counsel’s submissions in paras. 3.7 – 3.9 that the applicants’ Preliminary Objection is incompetent because the applicants did not raise any complaint of irregularity of service in their Statement of Defence and thus springing a surprise on the claimant, is also with the greatest respect to my learned friend, grossly misconceived in law. Counsel urged the court to totally discountenance them. This is because of the following reasons: a. It is a fundamental principle of law that jurisdiction is determined by the plaintiff’s claim, (not the defendants’ Statement of Defence). It is the plaintiff’s claim before the court that the court has to look at or examine to ascertain whether it comes within the jurisdiction conferred on the court. See the case of Adeyemi vs. Opeyori (1976) 10 SC 31 at 51. b. An objection to the jurisdiction of the court (such as the applicants’ instant Preliminary Objection) can be raised at any time, even where there are no pleadings filed and such objections need not be brought under any Rule of court but under the court’s inherent jurisdiction even if the only process filed is the Writ of Summons (in this case, the complaint). See the case of Arjay Ltd. & Ors. vs. Airline Management Support Ltd. (2003) 5 MJSC 1 @ 12 para. G. c. The failure of the claimant to serve their originating process on the applicants as required by law is one that goes to the proper procedure in litigation. This is because “every party to litigation must be served” (Underlining ours for emphasis) “with the writ of Summons” (in this instant case with the originating compliant). “It is the service of the said process that clothes the court with jurisdiction to hear and entertain the case at hand. It is truly a pre-condition for the court’s exercise of its jurisdiction, and the effect of failure to comply with this pre-condition is that any proceedings embarked on by the court would be declared a nullity. This accords with the principle of natural justice which postulates that both sides to a case should not only be heard but they should also be seen to have been heard”. (Skenconsult (Nig.) Ltd. vs. Ukey (1981) 1 SC 6; referred to by their lordships in the Supreme Court case of Nelson Ononye & 2 Ors. Vs. Right Revd. Monsignor C. Chukwu (parish priest in charge of St. Joseph’s Catholic Church Asaba for himself and on behalf of members of the parish and Catholic Diocese of Isselle-Uku (2005) 17 NWLR (pt. 953) 90 esp. 95 Ratio 12 d. Counsel reiterated that the purpose of the applicant giving the claimant their Notice of Preliminary Objection Challenging jurisdiction filed on 18/11/2014, is to give the claimant an opportunity to react to the said objection (which said opportunity he has exercised by filing on 4th December, 2014 his Counter Affidavit and Written Address in opposition to the said Preliminary Objection). The Preliminary Objection was also filed to avoid springing any alleged surprise on the claimant. See the case of Abubakar vs. Joseph (2008) All FWLR (pt. 432) 1062 – 1065 paras F- G. e. Finally, counsel submitted that the claimant’s counsel’s submission in issue 1 paragraphs 3.1 – 3.2 is misconceived in law and should be discountenanced. This is because it is trite that the duty of the applicants stopped when their process (i.e. Preliminary Objection and Written Addresses) where presented, assessed for filing at the Registry of this court. See the case of Yusuf vs. Obasanjo (2003) 16 NWLR (Pt. 847) 554. This is more so as Order 6 Rule 3 of the Rules of this court 2007 provides that “the Registrar shall promptly arrange for service of a copy of the originating process and accompanying documents on each defendant or respondent”. Thus, it is not the duty of the applicants to serve the claimant with their Preliminary Objection but that of the Registrar of this court. Where he fails to serve the applicant’s Preliminary Objection within the time statutorily provided the law is that this court will not penalize a litigant for the mistake of the court’s Registry. See the case of NNPC vs. Ahamba (2010) All FWLR (Pt. 508) 365 @ 374 para. A-B. From the foregoing, the applicants prayed the court to discountenance in their entirety the claimants’ counsel Written Submissions, case laws/authorities raised in his Issue one. In issue 2 paragraphs 4.0 – 4.16 of the claimant’s Written Address the claimant through his counsel, again raised various technical issues all in his effort to, urge the Court to hold that his purported service on the applicants of his originating complaint and its accompanying processes is proper in law. Counsel urged the Court to discountenance in their entirety the Written Submissions and authorities/case laws cited therein as misconceived in law for the following reasons: i. Counsel’s submission that his originating processes were properly delivered in line with Order 7 Rule 8 of the rules of this court, to the applicants at the Chambers of the 2nd defendant is misconceived in law. This is because the law is trite that before the claimant can claim to have served the applicants his originating processes an officer in through the office of the 3rd defendant (i.e. the Attorney General of Rivers State) he must have obtained from this Court an order for substituted service which said order was not obtained in this case. ii. Secondly, claimant’s heavy reliance in the case of Rivers State Government of Nigeria vs. Specialist Konsult (supra) in aid of his submissions that applicants have submitted to jurisdiction because they have entered appearance and filed joint statement of defence which is proof of service of his originating complaint on them is misconceived in law. This is because the circumstances and facts of the said Specialist Konsult case are not on all fours with the instant case. In the Specialist Konsult case (supra) the issue was whether service in the Rivers State Liaison office of originating process meant for Rivers State Government is proper service was under consideration unlike the instant issue before this court. The law is well settled that a decision cannot be a binding or persuasive precedent in another case unless the material facts and applicable laws are the same or at least very similar. Refer to the case of Ofafor vs. Nnaife (1987) 9-10 SCNJ 63 @ 70 iii. Again, claimant’s counsel’s heavy reliance in the case of Miss Oluchi Anyanwoko vs. Chief Mrs. Christy Okoye (supra) in support of his assertion that the Applicants have waived their right to challenge the jurisdiction of this court to hear this suit for non-service of the originating complaint on them because the applicants have filed a memorandum of appearance and joint statement of defence is respectfully misconceived in law. The facts and circumstances of Anyanwoko’s case (supra) do not apply in this case. In Anyanwoko’s case (supra) the preliminary issues whether the subject matter was appropriate for the issuance of originating summons, the compliance of the originating summons with the rules and the appellants filing a Counter Affidavit after becoming aware of non-compliance with the rules of Court, were issues for determination before the Supreme Court unlike the instant suit. None of the afore issues are before this court for determination. This is more so as the applicants’ instant application touches on the jurisdiction of this court to hear the claimant’s complaint. It is not a mere breach of procedural Rules unlike in Anyanwoko’s case (supra). Counsel referred the court to the lead judgment of Tabai, JSC in the Anyanwoko’s case (supra) at page 47 where His Lordship held thus: “The non-complained of are mere breaches of Procedural Rules. An application to set aside a suit for irregularities shall not be allowed unless it is made within a reasonable time before the applicant takes any fresh step after noticing the irregularity. This is the purport of the provisions of Order 2 Rule 2(1) of the High Court of the Federal Capital Territory Rules. In this case the appellant filed a Counter Affidavit dated 17th September, 2003 and a further affidavit on the 10th October, 2003. On this issue the Court of Appeal reasoned: “The practice is that where a party has become aware of non-compliance, or where a Writ is defective he should apply for striking out of same before taking any further steps in the proceedings. Otherwise he will be estopped from raising the issue of defect”. The court relied on a number of authorities in reaching its decision. It therefore endorsed the position taken by the Trial Court to the same effect. I do not think I have any reason to impign the findings and conclusions of the courts below which I therefore also endorse”. Clearly from the afore quoted judgment of Tabai, JSC, the reliance on Anyanwoko’s case (supra) is very unhelpful to the claimant for the purpose sought to be achieved by their reliance on it. Indeed as Justice Oputa (of blessed memory) advised in the popular case of Okafor vs. Nnaife (supra) at page 525: “Justice and fairness demand that the ratio of any case should not be pulled by the hair of the head and made willy-nilly to apply to cases where the surrounding circumstances are different”. Counsel commended the afore advise of His Lordship to this Court and urged the Court to discountenance the claimant’s Written Address and case laws cited therein in his issue 2. According to the applicants, Counsel for the Claimant had argued in paragraphs 5.1 to 5.9 of his Written Address that the provisions of the Public Officers Protection Act is not applicable to render his complaint before this court statute barred for following reasons: a. That the subject matter is a claim for work and labour done by the claimant. He relied forcefully on the decision of FGN vs. Zebra energy Ltd. (supra). b. That the applicants acted outside the confines of the law and with bias against the claimant. In reply, counsel for the applicants submitted that the entire arguments and case laws cited by Counsel therein are erroneous in law and should be discountenanced by this court. He submitted that this is because a careful reading of the claimant’s complaint reveals that his complaint or cause of action is not a claim for work or labour done by the claimant as alleged but one squarely bordering on constitutional and Statutory Issues. Counsel referred the court to paragraphs 4, 6, 7, 12, 13, 14 b, d, e, f, g, 15, 18, 19 (1) of the claimant’s Statement of Facts establishing the cause of action which is in the records of this court that the court is enjoined to take judicial Notice of pursuant to section 122(20)(m) Evidence Act 2011. From the above paragraphs, it is clear that the germane issues as emphasized therein by the claimant, borders on the claimants rights under the provisions of section 7 of the 1999 Constitution and the Rivers State Public and Political Office Holder’s Salaries, Allowances and Fringe Benefits Law No. 4 of 2002. Counsel referred the court to reliefs 19(i)(ii) of the claimant’s claims contained in his complain. From the above reliefs and pleadings, Counsel submitted that the claimant’s arguments that section 2(a) of the Public Officers (Protection) Act would not apply are erroneous and unfounded and he urged the court to so hold. On issue 4b, according to counsel for the applicants, that the claimant’s submission that section 2(a) would not avail the applicants because they acted outside the confines of the law and with bias, is unfounded and should be discountenanced. According to counsel, no iota of evidence is proffered by the claimant in support of these allegations except bare assertions without more which are of no moment in law. The applicants did not also act outside their functions as provided by the Constitution/Statutes creating them. The claimant’s argument does not reflect the true position of the law and should be discountenanced. The claimant’s argument in paragraphs 5.1 – 5.2 and reliance on Woherem vs. Eneruwa and Egbe vs. Adefarasin’s cases that so far as the applicants have challenged the competence of claimant’s suit on ground that same is statue barred, the applicants are deemed to have admitted all the claimant’s claim, is with respect, unfounded in law. This is because Woherem’s case decided as follows at page 416 paras. E – F. “The position becomes different where issue is joined by the parties in their pleadings as to the date the cause of action in the suit arose. In that case, such an issue must be proved by the parties in the course of the hearing of the suit by credible evidence to be determined by the court”. To the applicants, the Claimant’s reliance on Emeruwa and Woherem’s case is very unhelpful to the claimant for the purpose sought to be achieved by his reliance on it. The claimant’s arguments should be discountenanced as untenable in law. Counsel urged the Court to so hold. Accordingly counsel for the applicants urged the court to discountenance all the authorities and cases relied upon by the claimant’s Counsel in his Written Address in opposition to the Applicants’ Preliminary Objection, not because the said decisions are wrong; because they are not wrong. They simply do not apply here because this action is caught by statute to wit: the Public Officers Protection Act. Those matters can no longer be enquired into by any court of law and since that is so, this Court lacks the jurisdiction to entertain the claimant’s claim. Before I go on to determine the issues involved in the Notice of Preliminary Objection of the 2nd and 3rd defendants, there is need to first consider the objection to the competency of the Notice of Preliminary Objection raised by the claimant. In paragraph 14 (i) of the claimant’s counter Affidavit to the Notice of Preliminary Objection, the claimant contended that the 2nd and 3rd defendants Notice of Preliminary Objection is defective and incompetent. When arguing this point in his written address, the claimant’s counsel submitted that the Notice of Preliminary Objection is defective and incompetent and liable to be struck out for non-compliance with Order 5 rule 2(2) of the rules of this court and Order 11 Rule 1(3) of the Court’s Practice Direction 2012. In respect of Order 11 Rule 1 (3), counsel submitted that the Notice of Preliminary Objection was filed on the 18th day of November, 2014 but was not served on the claimant’s Counsel until 27th day of November, 2014 which was more than the 5 days prescribed in Order 11, Rule 1 (3) of the Practice Direction. Counsel argued that the NPO has become incompetent for failure to serve it on the claimant within 5 days from the date it was filed. In my view, non-service of the Notice of Preliminary Objection on the claimant within 5 days of filing is merely an irregularity which does not affect the competence of the Notice of Preliminary Objection. The irregularity may also have arisen from the registry of this court because the duty to effect service on the claimant is not the duty of the defendants unless they undertake to make personal service on the claimant. The defendants cannot be punished for the delay in effecting service of the NPO on the claimant. Furthermore, it is also my view that the claimant has waived his right to complain about the irregularity having filed his counter affidavit and did argue the preliminary objection. Order 5, Rule 2 (1) of the Rules of this Court has caught up with him. See also ATTORNEY GENERAL BENDEL STATE vs. ATTORNEY GENERAL FEDERATION (supra) where it was held that a party cannot complain of an irregularity after he has taken several steps and filed counter affidavits and tendered documents admitted as exhibits in the proceedings. The claimant’s counsel has also relied on Order 5 Rule 2 (2) of the Rules of this court to contend that the Notice of Preliminary Objection is incompetent. According to the claimant’s counsel, the Rules require this type of application complaining of an irregularity in any step taken in a matter to be made by summons or motion and not having been made by any of these processes makes the Notice of Preliminary Objection incompetent. Can the 2nd and 3rd defendants’ application be said to be incompetent simply because it was not made by way of Summons or motion? The answer can be found in the said Order 5 Rule 2 (2). It provides- “An application under this rule may be made by summons or motion and the grounds of objection shall be stated in the summons or notice of motion”. By this provision, the process by which such application can be brought is not closed. The operative words to note are “may be made by summons or motion.” The implication of these wording of the rule is that an applicant is afforded a discretion to bring the application by other processes recognised by the court. In this case, the defendants have made the application by way of Notice of Preliminary Objection. By Order 1 Rule 3 (2) of the Rules of this court and Order 11 Rule 1 (3) of the NIC Practice Direction 2012, a Notice of Preliminary Objection, being a Notice, is one of the recognised processes of bringing applications before the court. In my view, the 2nd and 3rd defendants’ application cannot be declared incompetent because it was not made by summons or motion. What is more, the 2nd and 3rd defendants have complied with the mandatory part of the rule by stating the grounds of their objection in the Notice of Preliminary Objection. I also find and hold that Notice of Preliminary Objection is one of the processes an applicant may employ under Order 5, Rule 2 (2) to challenge an irregularity. I must also make the point that assuming without not so holding that Order 5, Rule 2 (2) is applicable, it will only affect the part of the Notice of Preliminary Objection on service because it is that ground of the Notice of Preliminary Objection that borders on irregularity. There is still the issue of statute bar raised in the Notice of Preliminary Objection which is not a complaint of irregularity with the rules of court. It is only applications brought under Order 5 which may be made by summons or motion. Now, since the ground of the Notice of Preliminary Objection was not based only on non-compliance with the Rules, the entire application cannot be struck as the claimant will want this court to do. On a second thought, I think the tide of the claimant’s objection to the competence of the Notice of Preliminary Objection have turned against the claimant. The claimant’s contention is that the defendants have not complied with the Rules in bringing their preliminary objection and have urged the court to strike out the Notice of Preliminary Objection. By what process is the claimant to make such objection? In Order 5 of the rules, failure to comply with the rules is termed an irregularity and an application to set aside or strike out the irregular process can only be made by summons or motion as have been argued by the claimant’s counsel. The claimant has made this objection to the Notice of Preliminary Objection in the written address of the claimant’s counsel. If the argument of the claimant’s counsel is to be employed on its full scale, then the effect on the claimant’s objection is that the objection, which was made in a written address, is not competent because it was not made by Summons or motion. I have also expressed the view a number of times in this court that it is inappropriate to raise a preliminary objection in an address to challenge a preliminary objection. Be that as it may, the preliminary objection by the 2nd and 3rd defendants touches on the jurisdiction of this court to continue to hear and determine this suit. Jurisdictional issues such as service of process and statutory limitation have been raised. These grounds go to the very foundation of this action. In that circumstance, this court cannot hold the alleged failure of the defendants to comply with rules in respect of their Notice of Preliminary Objection to vitiate the Objection and proceed thereafter to hear and determine the suit. This is because if this court happens not to have jurisdiction, the entire proceedings will be a nullity no matter how well it has been conducted. Without wasting any more time on this preliminary issue, the claimant’s objection to the competence of the Notice of Preliminary Objection of the 2nd and 3rd defendants fail. Having carefully considered the arguments of counsels canvassed in respect of the preliminary of objection of the 2nd and 3rd defendants, two issues arise for determination in this ruling. They are- 1. Whether this suit is statute barred? 2. Whether service of the originating process in this suit on the 2nd and 3rd defendants should be set aside? ISSUE 1: The 2nd and 3rd defendants have urged this court, in the preliminary objection, to strike out this suit for being statute barred. In the grounds of the application, the defendants have contended that the claimant’s suit is caught by the Public Officers’ Protection Act as the suit was filed more than 3 months after the cause of action accrued. Similarly, it was deposed in paragraph 8 of the affidavit in support of the application that the claimant’s suit is statute barred. In his written address, the counsel for the 2nd and 3rd defendant submitted that the defendants are public officers and this action was not instituted against them within 3 months from the date of the cause of action as required by section 2 (a) of the Public Officers’ Protection Act. The suit is as a consequence statute barred and should be struck out. In responding to this leg of the preliminary objection, the claimant filed a counter affidavit deposed to by one Nelson Edet Udoh. In the depositions in the counter affidavit, the fact was not denied that this suit was not filed within 3 months from the cause of action. The facts the claimant contends in defence of the objection is contained in the following paragraphs of the counter affidavit- “11. That I know as a fact that the subject matter of my suit against the defendants is a claim for work and labour done by me as a public and political office holder in my capacity as Special Adviser on Political Matters of the 1st defendant for which I am entitled to be remunerated and paid salaries and allowances as per the Rivers State Public and Political Office Holders Salaries, Allowance and Fringe Benefits Law No. 4 of 2002. 12. That my claim against the 2nd and 3rd defendants/applicants is that they acted outside the colour of their statutory and constitutional duties and were actuated by malice, malevolence, and spite against me in tampering with my tenure of office and procuring the stoppage and continued refusal to pay my salaries, allowances and other perquisites of office 13. That I know as a fact that the Public Officers Protection Act does not apply to claim for work and labour done by a plaintiff and my cause of action and claim against the defendants/applicants is not statute barred.” Based on these averments, the claimant’s counsel submitted in his written address that the Public Officers’ Protection Act does not apply to the claimant’s suit as his claims is for his entitlements for work or labour done and the defendants cannot be protected by the Public Officers’ Protection Act because they acted outside the colour of their statutory duty and acted maliciously against the claimant. Section 2 (a) of the Public Officers’ Protection Act 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 must be commenced within 3 months from 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. Where the suit is not commenced within 3 months from the date of the cause of action, the action will be statute barred. See IBRAHIM vs. JSC KADUNA STATE (1998) 14 NWLR (Pt. 584) 1 AT 36; EGBE vs. ALHAJI (1990) 1 NWLR (Pt. 128) 599; NTUKS vs. N.P.A (2007) 13 NWLR (Pt. 1051) 392 In this application, it is not disputed that the defendants are public officers and it is not also disputed that this suit was filed more than 3 months from the date the cause of action arose. For the avoidance of doubt, this suit was filed on 29/10/2014 while it is disclosed in the claimant’s statement of fact, particularly paragraph 10 thereof, that the claimant’s cause of action arose in April 2013 being the date when the defendants stopped paying the claimant’s salaries and entitlement. On these facts, the defendants are right to contend that the claimant’s suit is statute barred. The claimant’s position however is that his claims, being one for work or labour done, is not statute barred. The claimant’s counsel relied on the cases of C.B.N vs. ADEDEJI and F.G.N vs. ZEBRA ENERGY LTD in contending that the Public Officers’ Protection Act does not apply to the claims of the claimant. As rightly submitted by the claimant’s counsel, it have been settled in plethora of judicial authorities that the Public Officers’ Protection Act does not apply to cases of contract, recovery of land, breaches of contract or claims for work and labour done. See SALAKO vs. L.E.D.B (1953) 20 NLR 169; OSUN STATE GOVERNMENT vs. DALAMI (NIG) LTD. (2007) NWLR (Pt.1038) 66; F.G.N vs. ZEBRA ENERGY LTD. (2002) 18 NWLR (Pt. 891) 162 at 197. These authorities have created exceptions to the applicability of Section 2 (a) of the Public Officers’ Protection Act. Once it is shown that the claims, among others, is for recovery of payment or entitlements for work or labour done, the Public Officers’ Protection Act will not operate to bar the action. In view of the facts of the claimant’s case, can it be said that the claims is for work and labour done as to be exempted from being caught up by the Public Officers’ Protection Act? A look at the reliefs sought by the claimant in this suit shows that his claim is for payment of his salaries, allowances and other benefits from May 2013 to May 2014. See Reliefs 2, 3 (a) and (b). In paragraph 10 and 11 of the statement of facts, the claimant pleaded that in April 2013 he was suspended from office as the Special Adviser to the Executive Chairman of the 1st Defendant Council by a resolution of the Rivers State House of Assembly and as a result of that suspension, the 2nd defendant stopped the further payment of his entitlements. The claimant challenged his suspension in court and on 25th November 2013, the Rivers State High Court delivered judgment in the matter setting aside his suspension and restoring him to office. In Paragraphs 12 (b) and 13 of the Statement of Facts, the claimant pleaded that on 28th November 2013, that is 3 days after the judgment, the 2nd defendant and the Rivers State Government dissolved the Executive Committee of the 1st defendant Council of which the claimant is a Special Adviser to the Executive Chairman and the Head of Local Government Administration of the 1st defendant was appointed to take over from the claimant. But because the dissolution was not formally communicated to him, the claimant pleaded in paragraph 15, he ignored the announcement and on his own continued in office until 30th May 2014 when his 3-year tenure expired but he was not paid any salaries or allowances by the defendants. I find from these facts that the claimant was not in office between April 2013 and November 2013. By his facts also, the council was dissolved in November 2013. The validity of his suspension or the dissolution of the Council are not matters now before me nor are they matters on which I can adjudicate. What is before me and which calls for immediate determination is whether the claimant has worked between May 2013 to May 2014 as to qualify his claims to fall under the category of work and labour done. The facts of his case show that he was not in office between those periods. In this period, the claimant was on suspension and was only just returning to office when the council was dissolved and another person was appointed into his office, though the claimant said he decided to ignore the dissolution. I find that the sums of money the claimant claims in this suit as his entitlements cannot be classified under work or labour done. Furthermore, the reliefs the claimant seek in this case are not all about seeking payment for work or labour done. There are declaratory reliefs and others are asking for orders for payment of some sums. Reliefs 1 and 2 are declarations. These are the main claims of the claimant in this suit. It is based on the expectation of the declarations being made that the claimant sought payment of the sums claimed as salaries and allowances. The claimant also sought general damages and injunction. I do not agree with the claimant’s counsel on his contention that the claimant’s claims are purely claim for work and labour done. Therefore, the claimant’s case is not claim for money owed or for work done. His claims do not fall within the permissible exceptions to section 2 (a) of the Public Officers’ Protection Act. The Claimant has also contended that the defendants cannot be protected by the Public Officers’ Protection Act because they acted outside the colour of their statutory duties and maliciously against the claimant. The law is that where a public officer acted outside the colour of his office or in abuse of office or acted in bad faith, the protection under Section 2 (a) of the Public Officers’ Protection Act will not avail him. This is because the Public Officers’ Protection Act is designed to protect officers who act in good faith and does not apply to acts done in abuse of office. See OFFOBOCHE vs. OGOJA LOCAL GOVERNMENT (2001) FWLR (Pt. 68) 1051 AT 1067. However, the issues of abuse of office, malice or bad faith can only be applied to disentitle the public officer from the protection of the Public Officers’ Protection Act if the action has been commenced against him within the 3 months period. In KASANDUBU vs. ULTIMATE PETROLEUM LTD (2008) All FWLR (Pt. 417) 155 at 182, it was held that a public officer, who in the course of performance of public duty, does so maliciously or for private spite, has no protection under Section 2 of the Public Officers’ Protection Act if the action is filed against him within 3 months. See also the Supreme Court in EGBE vs. ALHAJI (1990) 1 NWLR (Pt. 128) 546 where Uwais JSC (as he then was) at page 572 of the report commented thus- “In a civil action when the defendant invokes in limine the provisions of the Public Officers protection Act, it is not proper for the trial court to conclude or infer from the pleadings that the protection afforded the defendant by law is has been vitiated by malice or bad faith. What the trial court is obligated to decide at that stage is whether the action is maintainable and whether the defendant is liable.” On his part, Karibi-Whyte JSC (as then was) held at pages 596-597 thus: “Where the action was instituted within the period of three months prescribed, there is a cause of action and the legality vel non of the action complained of can be in issue. It is in such a situation that at the trial, evidence can be led to determine whether the protection under the Public Officers Protection Act has been vitiated by malice, improper motive, bad faith or deliberate exercise of power without lawful authority” In view of the foregoing opinions of the learned jurists, the question whether the defendants acted outside the colour of their office or acted in bad faith or maliciously is premature at this stage the suit having not been commenced within 3 months from when the cause of action arose. Since the action was not filed within three months from the accrual of the cause of action, this court cannot inquire into whether the defendants acted outside the colour of their office or whether malice has vitiated the protection afforded the defendants under the Public Officers’ Protection Act. It is clear from the foregoing that this suit was filed more than 3 months from the date the cause of action arose. The claimant did not commence this suit against the defendants within the statutorily prescribed 3 months. The suit is therefore statute barred and it is hereby struck out. ISSUE 2: In view of the conclusion reached in issue one above, issue two need no longer be considered as it will amount to a mere academic exercise. Be that as it may, for purposes of clarity, I have chosen to touch briefly on the issue, which this court has incidentally dealt with in previous decisions. It is noted that the defendants had become aware of the claims against them and had filed a memorandum of appearance and indeed a notice of preliminary objection which has been dealt with earlier in this ruling. In ETIM & ORS vs. OBOT & ORS (2009) LPELR-4128(CA), the Court of Appeal held that once the existence of a suit has been brought to the notice of the adverse party and they have taken steps in the matter, they are deemed to have waived the irregularity complained of. More light was shed on this principle in the case of MAKO vs. UMOH (2010) LPELR-4463(CA) where it was held per UWANI MUSA ABBA AJI, J.C.A (Pt. 33-35, Paras. G-A) that an application to set aside a writ for irregularity of service or non-compliance with rules of court must be refused if the defendant complaining of such irregularity or non-compliance has taken fresh steps in the matter, which will amount to a waiver of the irregularity complained of. The defendants in this case had taken fresh steps when they filed a memorandum of appearance and a notice of preliminary objection. Having joined issues, they can therefore be seen to have waived the perceived irregularity complained of. BELGORE JSC has held in TOTAL INT. LTD. vs. AWOGBORO (1994) 4 NWLR (Pt. 337)147 that an irregularity or non-compliance with rules relating to service of court process may render a trial nugatory “only if its effect is that it did not in fact lead to the service to attract knowledge of the party it was addressed to.” In the instant case, the purported service on the 2nd and 3rd Defendants through an executive officer has achieved its desired purpose of attracting the knowledge of the defendants to the existence of the suit; and they have indeed appeared and taken positive steps towards defending the action. Issue two is therefore resolved against the applicants. In the final analysis of issue one dealt with earlier in this ruling, I find and hold that the Claimant’s suit having not been commenced within 3 months from the accrual of the cause of action, it is statute barred, and it is accordingly struck out. Parties are to bear their costs. Ruling is entered accordingly. Hon. Justice O. Y. Anuwe Judge