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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 19, 2015 SUIT NO. NICN/OW/31/2014 Between Ex-Cadet Inspector Chindu Temple - Claimant And 1. Supol Jimoh M. Jabaje The DPO Ugwunagbo Divisional Police Station 2. Commissioner of Police, Abia State 3. The Commandant, Nigeria Police Academy Kano (POLAC) Defendants 4. The Inspector General of Police 5. Police Service Commission Representation Igwe Ogwo Esq. for the Claimant C. M. Onyeweaku for the Defendant RULING/JUDGMENT The Claimant took out a complaint on the 20th March, 2014 jointly and severally against the defendants, seeking the following reliefs: i) A declaration that the dismissal of the Claimant by the 1st and 2nd defendants from the Nigerian Police Force without an opportunity to defend himself is contrary to the principle of Natural Justice equity and good conscience and the 1999 constitution of the Federal Republic of Nigeria, void and of no effect. ii) A declaration that the alleged trial of the Claimant in his absence without notice under police constable capacity while the Claimant was cadet inspector was done without jurisdiction and thereby void and of no effect. iii) An order commanding the 3rd and 4th defendants to reinstate the Claimant into the Nigeria Police Force and pay the Claimant all his arrears of salary and other of his entitlements. iv) A General damage of N5, 000, 000.00 (Five Million Naira) to be paid to the Claimant. By a Notice of preliminary objection Brought pursuant to Order 11 Rule 1 and Order 15 of the National Industrial Court Rules, 2007 and Section 2(a) of the Public Officers Protection Act Cap 379 Laws of the Federation 1990 and under the inherent jurisdiction of the court, the 1st to 4th Defendants are praying this court for an order dismissing and/or striking out this suit for want of competence on the ground that The Action is statute barred having been filed outside 3 months period as provided by Public Officer Protection Act. The application is supported by an affidavit of 5 paragraphs deposed to by Michael Uzomnaku upon which Counsel placed reliance. In the accompanying written address, Counsel for the applicants nominated a sole issue for the determination of the court: “Whether this Action is statute barred by virtue of Section 2(a) of the Public Officers Protection Act (Cap 379) Laws of the Federation of Nigeria 1990 and what is the effect of this action if it is statute barred”. The facts of this case as summarised by the Claimant is that on the 20th day of April 2012, an incident of escape of a suspect involved in a case of Affray was reported in the station (Area command Headquarters Aba). On that day, the Claimant was on night duty post as station writer while one inspector Gabriel Odey and Corporal Paul Isaiah were posted as the station guards. The Claimant was still serving at the Anti-Robbery section of the Area Command Headquarters Aba before being enlisted and documented as a cadet inspector of police and commenced his inspectorate training on 9th day of July 2012. He was not informed, invited, notified and/or summoned by anybody to appear before any panel, delegated officer or any orderly room trial tribunal. And also, no form of notice, invitation or summons was served or issued to the Claimant at the Nigerian Police Academy (POLAC) Kano to release the Claimant/Respondent to appear for an orderly room trial purportedly conducted at the Area Command Headquarters Aba which commenced on 10/9/2012 and ended on 16/10/2012. While the Claimant was undergoing the inspector training course at the Nigeria Police Academy Kano (POLAC) precisely on 12th day of March, 2013 at about 17:30 hrs, the Police Academy provost (POLAC Provost Kano) and his team came and drove the Claimant/Respondent out of his hostel room on the ground that he had been dismissed from the Nigeria Police Force through a signal forwarded to the Nigeria Police Academy Kano by the Abia State Police Command. Thus, on the strength of the said signal the Claimant was wrongly dismissed and sent out of the Nigeria Police Academy (POLAC) Kano by the then commandant, without recourse to the due process of law and fair hearing to the Claimant. The Claimant in swift response to his wrongful and illegal dismissal from Nigeria Police Force wrote to the Inspector General of Police (IGP), Deputy Inspector General of Police, ‘A’ Department, the Police Force Headquarters Abuja, the Commandant Nigeria Police Academy Kano, the Police Service Commission and other relevant authorities. The Claimant’s complaints were never addressed till date. The Claimant gave a ONE MONTH pre-action Notice to the defendants through his solicitor’s letter dated 27th December, 2013, which the defendants refused to respond, hence this action. In his argument counsel submitted that the task of the court in determining whether a suit is statute barred or not, is achieved by the examination of the writ of summons and the statement of claim to ascertain the date of filing the action. He referred the court to the case of CHIEF S.N. MUOMAH vs. SPRINK BANK PLC (2010) All FMLR 1097 at 1099. Counsel, referring the court to the case of NPA vs. LOTUS PLASTICS LTD (2005) 24 NSCLR at 569, submitted that the legal principle operational in the instant case is that proceedings commenced after the time prescribed by the statute is invalid. From the complaint and statement of facts of the claimant, the matter complained of; which constitutes the claimant’s cause of action occurred in 2012, while this suit was commenced on the 20th day of March, 2014 more than 3 months after the cause of action arose. Counsel submitted that because the claimant failed to bring this action claiming reliefs against the 1st to 4th defendants of acts done by them in pursuance of the official duties within 3 months, Section 2(a) Public Officers Protection Act would apply to render the action statute barred. The cited section provides that: Where any action, prosecution or other proceeding is commenced against any person for an act done in pursuance of execution on intended execution of any law or of any public duty or authority or in respect of any alleged neglect or default in execution of any such law, duty or authority, the following provisions shall have effect “ the action prosecution or proceeding shall not lie or be institute unless it commenced within 3 months next after the leading thereof provided that the proceeding be at the instance of any person for cause arising while such person was a convict, prisoner, it may be commenced within 3 months after the discharge of such person from prison. In addition, counsel argued that the appropriate order to make when an action is statute barred is one of dismissal. In LAMINA vs. LOCAL GOVERNMENT (1993) 8 NWLR (Pt.314) 758, it was held that where a court finds that an action is statute barred, such finding is an end to the action and as at that stage, the cause of action is not capable of re-litigation and the proper order is one of dismissal. Thus the Claimant who failed to institute this suit within the time statutorily allowed operates to extinguish his right of action. Finally, Counsel urged the court to hold that this action is statute barred and strike out or dismiss same and award substantial cost in favour of the 1st to 4th Defendants. In reaction to the preliminary objection of the 1st to 4th defendants, the Claimant filed a Counter Affidavit of 17 paragraphs deposed to by the Claimant himself and a written address canvassing arguments in opposition to the preliminary objection. Counsel for the Claimant, citing the case of OKEKE vs. BABA (2000) 2 NWLR (Pt. 650) 644 at 653 PARA A RATIO 3, pointed out that Section 2(a) of the Public Officer’s Protection Act Cap P 41 LAWS OF THE FEDERATION OF NIGERIA 2004 provides a 3-month limitation period within which an action can be brought against a public officer in respect of an act he committed in the course of his duty. However, the provisions of the public officers’ protection law are not absolute. The provisions do not apply to actions for recovery of land, breach of contract, claims for work and labour done, action of the Public Officer which was done outside the statutory and constitutional duties and lack of good faith. Counsel further cited the provisions of Sections 384 (6) and (12) of the Police Regulations Cap 359 volume 20 Laws of the Federation of the Federal Republic of Nigeria. Counsel proceeded to outline the relevant sections of the Laws mentioned above as follows: Section 2 (a) Public Officer’s Protection Act “that where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any Act or Law or of any alleged neglect of default in the execution of any such Act, Law, duty or authority, 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 complaint of”. Section 384 (6) Police Act and Regulation “in any orderly Room proceedings the defaulter shall be entitled to make his own defence but shall not be entitled to be represented by any person whatsoever”. Section 384 (12) Police Act and Regulation “if a defaulter having had due and reasonable notice of the time and place appointed for the investigation does not appear, the delegated officer may after considering any ascertainable circumstance of the absence proceed with the investigation or adjourn it to some future date”. Section 36 (1) of 1999 constitution of Nigeria as amended “in the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality”. The written address in support of the Claimant’s Counter affidavit raised three issues for the court’s consideration; which are: 1. Whether the preliminary objection to the competency of this suit can be sustained in the absence of paragraph 2 and 3 of the 1st to 4th Defendants/Applicants supporting affidavit? 2. Whether the defendants acted within the confines of their statutory and constitutional duties in dismissing the Claimant from the Nigeria Police Force without giving him the opportunity of fair hearing? 3. Whether a public officer whose action anchored on malice and lack good faith can hide under the cover of the Public Officers Protection Act? In his argument on the first issue counsel submitted that a perusal of paragraphs 2 and 3 of the 1st to 4th Defendant/Applicant supporting affidavit shows that the deponent is a third party (Corporal Michael Uzomnaku). The deponent stated in the affidavit facts based on the information he purports to have received from C. M. Onyenweaku Esq. which he believed to be true. However, the deponent failed to state the reasonable particulars of the informant, and TIME, PLACE and CIRCUMSTANCES of the information which offend Section 115 (4) of the Evidence Act 2011. Sections 115 (1) (3) and (4) of the Evidence Act 2011 provide as follows: 1. “Every affidavit used in the court shall contain only a statement of fact and circumstances to which the witness deposes, either of his own personal knowledge or from information which he believes to be true”. 2. ….. 3. “When a person deposes to his belief in any matter of fact and his belief is derived from any source other than his own personal knowledge, he shall set forth explicitly the facts and circumstances forming the ground of his belief”. 4. “When such belief is derived from information received from another person the name of his informant shall be stated and reasonable particulars shall be given respecting the informant and the time, place and circumstances of the information”. Edozie J.C.A. in the case of EDU vs. CAWRRD (2001) FWLR (Pt. 55) 433 stated: “It is not disputed that the facts deposed to in the appellants supporting affidavit by Mr. Matthew Ezego are not within his personal knowledge to satisfy the requirement of sections 88 and 89 of the Evidence Act now the section 115 (3) and 4 of the Evidence Act 2011, he ought to have set forth in the further and better affidavit the facts and circumstances forming the ground of his belief, the name if his informant reasonable particulars pertaining to the informant and the time, place and circumstance of the informant”. Also in Opene, J.C.A’s holding in the same case EDU vs. CAWRRD (Supra): “Compliance with Sections 88 and 89 of the Evidence Act (now Sections 115 (3) and (4) of the Evidence Act 2011) is obligatory because of the mandatory nature of the provision. Non-compliance thereto is therefore, bound to lead to the rejection of the relevant paragraphs of the offending affidavit”. In the same principle of law, the Court of Appeal per Salami JCA in EDAR STATIONERIES LTD vs. I.B.W.A. LTD (2000) 15 NWLR (Pt. 690) 338 at PP 349 – 50 HD held thus: “in striking out the offending paragraphs stated the law in these strong words: “the other problem of this application is the relevant onslaught mounted against the validity of or competence of the averment contained in paragraphs 4, 8 and 9 of the affidavit in support when respondents counsel rightly, in my view, contended that they offend against the provision provisions of Evidence Act. It is in these paragraphs along with some others already set out in his ruling that the applicant sought to show reason why it failed to cross-appeal within the time prescribed all the paragraphs referred to in the submission of the learned counsel for applicant without an exception viz. Paragraphs 7, 8, 9, 11, 12, 13, 16, 17 and 18 do not comply with the provisions of sections 88 and 89 (now sections 115 (3) and (4) Evidence Act 2011) of the Evidence Act, Cap. 62 of the Laws of Federation of Nigeria, 1990. It is incumbent on a person who deposes to his belief in a matter of fact, and whose belief is based on any source or sources other than his own personal knowledge, unequivocally must disclose the facts and circumstances forming the basis of his belief. Furthermore, when the belief is founded upon information received from another person, the name of his informant must be stated in the affidavit and must state reasonable particulars of such an informant including, the time, place and the circumstances of the information. In the instant case, the deponent woefully defaulted in stating the particulars of the various informants from whom he derived his information... The paragraphs deposed to by a staff of Mr. Offiong without due heed to the provision of sections 88 and 89 (now section 115 (3) and (4) ) of the Evidence Act, Cap.90 deserved to be struck out and are accordingly struck out by me”. Accordingly, counsel contended that, in the event of paragraphs 2 and 3 of the 1st to 4th Defendants/Applicants supporting affidavit of their preliminary objection being struck out, there will be no single averment in the supporting affidavit to support the prayer in this preliminary objection. He urged the court to strike out the preliminary objection for failure to sustain the prayer it is seeking for and proceed to the substance of the case. On the second issue, counsel for the Claimant answered in the negative, the question as to whether the defendants acted within the confines of their statutory and constitutional duties in dismissing the Claimant from the Nigeria Police Force without giving him the opportunity of fair hearing. Counsel submitted that Section 36 (1) of the 1999 constitution of the Federal Republic of Nigeria as amended and Section 384 (6) (12) of Police Act and Regulation cap. 359 volume 20 Laws of the Federation of Nigeria 1990 mandatorily provides that in the determination of any civil rights and obligation, including any question or determination by or against any government or authority, a person SHALL be entitled to FAIR HEARING within a reasonable time by a law and constituted in such a manner as to secure its independence and impartiality. He went on that it is pertinent to note that the right to fair hearing is a fundamental constitutional right guaranteed by the constitution of the Federal Republic of Nigeria, 1999 (as amended), and a breach of it particularly in trials vitiates such proceedings rendering same null and void; emphasising that A hearing cannot be said to be fair if any of the party is refused a hearing or denied the opportunity to be heard, present his case and call witness. Counsel referred the court to the following cases: (a) MILITARY GOVERNOR, IMO STATE vs. NWAUWA (1997) 2 NWLR (Pt. 490) 675. (b) SALEH vs. MONGUNO (2003) 1 NWLR (Pt. 801) 221. (c) BAMGBOYE vs. UNIVERSITY OF ILORIN (1999) 10 NWLR (Pt. 622) 270 (d) KOTOYE vs. CBN (1989) I NWLR (PT 98) 419. According to Counsel, it is not in dispute that the Claimant/Respondent commenced his cadet inspectorate training at the Nigeria Police Academy (POLAC) Kano on the 9th day of July, 2012. A look at Exhibit B attached to the Claimant/Respondents counter affidavit will show that a successful enlisted officer has within 7 days of the commencement date to report for the training or forfeit the opportunity. It is also crystal clear that the alleged orderly room trial upon which the Claimant/Respondent was dismissed and sent out of the Nigeria Police Academy (POLAC) Kano commenced on 10/9/2012 and ended on 16/10/2012 when the Claimant/Respondent was already undergoing cadet inspectorate training course. A look at the Exhibit A will show the time the alleged orderly from trial commenced and when it ended. Counsel pointed out that while the Claimant/Respondent was undergoing inspectorate training, at Nigeria Police Academy (POLAC) Kano, he was not informed invited, notified and/or summoned by anybody to appear before any panel, delegated officer or any orderly room trial, neither was there any signal sent to the Police Academy Authority to release the Claimant/Respondent to appear before any pane delegated officer or orderly room trial. The action of the defendants is in breach of the statutory and constitutional duties imposed on them. According to Counsel, the Supreme Court in a number of cases has expounded and propounded a number of exceptions to the protection provided for Public Officer and Public Officers under the Public Officer (Protection) Law, amongst which are: (a) Cases of continuance of damage or injury. (b) A situation where the person relying on it acted outside the colour of his office or outside his statutory or constitutional duty. (c) Cases of recovery of land (d) Breach of contract (e) Claim for work and labour done (f) Lack of Good faith. Counsel referred to the case of ATTORNEY GENERAL OF RIVERS STATE vs. ATTORNEY GENERAL OF BAYELSA STATE AND ANOTHER (2013) 3 NWLR (Pt. 1340) Page 149 paragraphs F-G; where is was held Per GALADIMA J.S.C. thus “the second exception to the application of the act as a defence is that it does not cover a situation where the person relying on it acted outside the colour of his statutory or constitutional duty as claimed by the plaintiff in this suit”. He referred further to the following cases: (a) NWANKERE vs. ADEWUMI (1967) ANLR 45 at 49 (b) ANOZIE vs. ATTORNEY GENERAL OF THE FEDERATION (2008) 10 NWLR (Pt. 1095) 278 at 290-291. It was the submission of counsel that the provisions of the Public Officers (Protection) Law give 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 duty or authority and are acting outside the colour of their office or employment or outside their statutory or constitutional duty, they automatically lose the protection of the law. In other words, a public officer can be sued outside the limitation period of three (3) months, if at all times material to the commission of the act complained of; he was acting outside his statutory or constitutional duty. Counsel referred the Court to the following cases: (a) IBRAHIM vs. JUDICIAL SERVICE COMMISSION, KADUNA STATE (1998) 14 NWLR (Pt. 584) 1 (b) ALHAJI ABBA ALI vs. THE GOVERNOR OF BORNO STATE & OTHERS (2008) All FWLR (Pt. 408) 365 CA at 367 Paragraphs D-F In view of the above cited authorities vis-a-vis the denial of the guaranteed constitutional and statutory right of fair hearing of the Claimant/Respondent, counsel urged the court to strike out the preliminary objection of the 1st to 4th Defendant/Applicants and hear the matter on its merits. On the third issue, counsel again answered in the negative, the question whether a public officer whose action anchored on malice and lack of good faith can hide under the cover of the public officers’ protection Act. He went on to submit that the provisions of the public officer’s protection Law are not absolute. Hence a proof of the mala fides in the public officers’ Act destroys the protection of pubic officers’ protection law for him. He referred the Court to the following cases: (a) EBIOGBE vs. NNPC (1994) 5 NWLR (Pt. 347) 649 (b) SANDA vs. KUKANA L.G. (1991) 2 NWLR (Pt.174) 379 (c) OLAOSIKA vs. WILLIAMS (1996) NWLR (Pt. 449) 437 (d) OKEKE vs. BABA (2003) 3 NWLR (Pt. 650) 652 at 653 According to counsel, a closer look at the Exhibit A attached to the Claimant/Respondent’s counter affidavit will show that the delegated officer (SUPOL Jimoh M. Jabaje) who presided over the alleged orderly room trial that led to the dismissal of the Claimant from the Nigeria Police Force knew that the Claimant was already undergoing cadet inspectorate training course as at the time in question. The delegated officer in his words at page 1 at paragraph 3 of the orderly room trial proceedings stated thus: “Today”, 10th September, 2012 at about 1100 hrs 1, Supol Jimoh M. Jabaje was seated expecting the defaulters in respect of the above charge to be marched before me. Thereafter at 11:45 hrs, the defaulters namely inspector Gabriel Odey and Corporal Paul Isaiah were marched before me for trial. Whereas the third defaulter F/NO. 461625 PC Chindu Temple was absent as it was revealed that he was in Jos staff Police for inspectorate course”. Also in page 2 at line 10 of the orderly room trial proceedings, the delegated officer stated thus: “the third defaulter namely F/NO. 461625 PC Chindu Temple was not in attendance simply because he was undergoing training at staff college Jos, this training he had commenced since May 2012. He was being trained for the on going inspectorate course of 2012”. To counsel, the delegated officer (SUPOL Jimoh M. JABAJE) in ascertaining that the Claimant was undergoing cadet inspectorate training course did not make any move to send a signal to the Claimant at the academy of the upcoming orderly room trial to enable him come and defend himself. However when they succeeded in achieving their aim (they concluded the orderly room trial which was done in absence and ignorance of the Claimant) they now send a signal at the Nigeria Police Academy (POLAC) Kano, which led to the Claimant’s dismissal from the Nigeria Police Force. Reference was made to Exhibit C attached to the Claimant/Respondent’s counter affidavit. Counsel made reference to the black’s law Dictionary Ninth Edition at page 159 which defined BAD FAITH mala fides as “A complete catalogue of types of bad faith is impossible, but the following types are among those which have been recognized in judicial decisions: evasion of the spirit of the bargain, lack of diligence and slacking off, Wilful rendering of, interference with, or failure to cooperate in the other party’s performance”. From the above definition, counsel stated that it is crystal clear that an abuse of power by somebody in authority or somebody that is in a position to perform certain duties can be termed (Mala fides) bad faith. All things being equal, the action of the delegated officer (SUPOL Jimoh M. Jabaje) who presided over the orderly room trial tribunal that dismissed the Claimant/Respondent (cadet inspector Chindu Temple) was done in bad faith, having abused his statutory and constitutional duty. Counsel then urged the court to strike out the 1st to 4th Defendant’s preliminary objection and hear the suit on its merits. I have carefully considered this Preliminary Objection raised by the 1st to 4th defendants, which is seeking an order of this court dismissing or striking out this suit on the ground that it is statute barred having been filed outside 3 months against the provision of section 2 (a) of the Public Officers Protection Act, and the submissions of the counsels to the parties for and against the application. Before I go on to determine whether the application ought to be granted, it is necessary to first address an objection by the claimant to certain paragraphs of the defendants’ affidavit in support of the Notice of Preliminary Objection and what effect, if any, the objection has on this application. In the supporting affidavit deposed by one Michael Uzomnaku, a police corporal with the State Criminal Investigation Department, Umuahia, it is deposed in paragraphs 2 and 3 that this suit was filed on 20/3/2014 and the act complained of by the claimant, that is his dismissal from service, occurred on 16/10/2012. The suit against the defendants is therefore statute barred. In reaction to these depositions, the claimant, in paragraph 5 of his counter affidavit averred that paragraphs 2 and 3 of the supporting affidavit are defective and incompetent. When arguing issue one formulated in his written address, the claimant’s counsel submitted that paragraphs 2 and 3 of the defendants supporting affidavit offended Section 115 of the Evidence Act in that the deponent did not give particulars of his informant and did not also state the time, place and circumstance of the information. Counsel submitted that these defects make the said paragraphs of the defendant’s affidavit liable to be struck out having offended Section 115 of the Evidence Act. As a consequence of the striking out of these paragraphs, the claimant’s counsel submitted further that the defendants have failed to show or prove that the action is statute barred and the Preliminary Objection should be struck out. The paragraphs of the supporting affidavit in question contain the main facts of the defendant to support the Notice of Preliminary Objection. The contention by the claimant therefore touches on the competence of the Notice of Preliminary Objection. The provisions of Section 115 of the Evidence Act relied on by the claimant’s counsel reads as follows- “(1) Every affidavit used in the court shall contain only a statement of facts and circumstances to which the witness deposes, either of his own personal knowledge or from information which he believes to be true. (2) ------------- (3) When a person deposes to his belief in any matter of fact, and his belief is derived from any source other than his own personal knowledge, he shall set forth explicitly the facts and circumstances forming the ground of his belief. (4) When such belief is derived from information received from another person, the name of his informant shall be stated, and reasonable particulars shall be given respecting the informant, and the time, place and circumstance of the information” In paragraphs 2 and 3 of the defendants’ affidavit, the deponent stated that he was informed of the facts contained in those paragraphs by C.M Onyeweaku Esq and he believed the said C.M Onyenwaeku Esq. The deponent however failed to state the time, place or circumstances of the information. The deponent only stated his belief in C.M Onyenwaeku Esq but did not depose to his belief in the truth of the information he received nor the facts and circumstances forming the ground of his belief in the information received from C.M Onyenwaeku Esq. I agree with the claimant’s counsel that paragraphs 2 and 3 of the affidavit in support of the Notice of Preliminary Objection have not complied with the provision of Section 115 of the Evidence Act. The paragraphs are therefore incompetent and I accordingly strike them out. See EDU vs. COWRRD (SUPRA); EDAR STATIONERIES LTD vs. I.B.W.A LTD. (SUPRA) The claimant’s counsel expressed the view that the consequence of the striking out of the offending paragraphs of the supporting affidavit is that the Notice of Preliminary Objection has become incompetent and it should be struck out. This court would have been inclined to tow that line of argument if the only process from which the court will derive facts to determine whether this suit is statute barred or not is the affidavit evidence alone. Two sets of facts necessary for determining whether a suit is statute barred are the facts of the date when the cause of action arose and the fact with regards to the date the suit was filed. The law is settled that in determining whether a suit is statute barred, the processes to which recourse should be had are the writ and the statement of claim. It is from these processes the date of accrual of the cause of action and the date the suit was filed can be deduced. See the Supreme Court cases of JSF INV. LTD vs. BRAWAL LINE LTD (2011) All FWLR (Pt. 578) 876 at 902; ELEBANJO vs. DAWODU 2006 All FWLR Pt. 328 604 at 646. In AMEDE vs. UBA (2009) All FWLR (Pt. 469) 479 at 506/507, the principle was stated this way- “In order to determine if a party’s action is statute barred, the court is only enjoined to look at the plaintiffs’ claims. The period of limitation is determined in a case by looking at the writ of summons and the statement of claim which alleges when the wrong suffered by the plaintiff was committed and placing it side by side with the date on which the writ was issued”. See also GULF OIL CO LTD vs. OLUBA (2003) FWLR (Pt. 145) 712 at 721; DAWODU vs. AJOSE (2011) All FWLR (Pt. 580) 1334 at 1345. From these authorities, it is clear that the question of statutory limitations is determined from the writ of summons and the statement claim and not necessarily from affidavit evidence. Therefore, notwithstanding that the relevant paragraphs of the defendants’ affidavit have been struck out, the preliminary objection is not incompetent. It can be considered nonetheless. Therefore, this court will proceed to consider whether the suit is statute barred. The defendants brought this application pursuant to Section 2 (a) of the Public Officers’ Protection Act, and it is contended in the grounds of the application that this suit is statute barred because it was not filed within 3 months from the accrual of the cause of action as required by the Act. The said Section 2 of the Public Officers’ Protection Act provides: “2. Where any action, prosecution or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any Act or Law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Act, Law, duty or authority, the following provision shall have effect: (a) The action, prosecution or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of a continuance of damage or injury, within three months next after the ceasing thereof.” The implication of the above provision of the Public Officers’ Protection Act is that an action against a public officer in respect of any act done in pursuance or execution of any Act or Law or of public duty or any default in respect of same can only be commenced within 3 months of the accrual of the cause of action except in the case of continuance of the damage or injury in which the complainant must institute the action within 3 months after the cessation of the damage or injury. If the suit is not commenced within the prescribed period, the claimant’s right of action in respect of that cause will be statute barred. See IBRAHIM vs. J.S.C, KADUNA STATE (1998) 12 SC 20. In his written address, the defendants’ counsel submitted that the defendants are public officers and this action was brought against them in respect of their performance of official duty. The defendants Counsel further submitted that since the suit was not filed within 3 months from the accrual of the cause of action, it is statute barred by virtue of Section 2(a) of the Public Officers’ Protection Act. The claimant did not, either in the counter affidavit or in the written address of his counsel, dispute the fact that the defendants are public officers. The claimant did not also dispute that his suit was filed more than 3 months after the cause of action arose. The defence the claimant has however put up in his counter affidavit to the defendants’ objection is that the defendants acted in bad faith and outside their statutory or constitutional duties. To the claimant, as a result of these factors, POPA will not apply to bar his suit against the defendants. I shall come to this contention of the claimant in a moment. Having read the statement of facts in this suit, particularly paragraphs 3, 4, 5, 6 and 7 thereof, it is clear to me that the defendants are public officers. Also, paragraphs 17 to 20 and relief (a) of the statement of facts show that the defendants were sued in respect of an alleged non-compliance by the defendants with the applicable regulation and the claimant’s constitutional right to fair hearing in the dismissal of the claimant from employment. Therefore, the defendants have been sued in respect of an alleged neglect or default in the execution of a Law or of their public duty and authority. I find that the defendants can seek the protection of Section 2 (a) of the Public Officers’ Protection Act in this action. The claimant’s cause of action in this suit is his dismissal from service. This is clear from the reliefs sought by him in this suit. In paragraphs 17 and 18 of the statement of facts, the claimant pleaded that he became aware of his dismissal on 12/3/2013 when, on that day, he was driven out of the Nigeria Police Academy, Kano, by the Provost on the ground that he had been dismissed from the Police Force. It is that dismissal that resulted to this suit. It is thus obvious that the claimant’s cause of action arose on 12/3/2013. I have also looked at the Complaint with which this suit was commenced and I find that it was filed on 20/3/2014; this is a period of about 12 months from the date the claimant’s cause of action arose. The claimant did not file this suit against the defendant within 3 months from the accrual of the cause of action as stipulated in Section 2 (a) of the Public Officers’ Protection Act. Clearly, the claimant’s suit is statute barred. I shall now turn to the exemptions canvassed by the claimant to save his case from the sledge hammer of Section 2 of the Public Officers’ Protection Act. As I have observed earlier, the claimant did not deny that his suit was filed outside the 3 months statutory period. His contention however is that the Public Officers’ Protection Act does not apply to the circumstance of this suit. In his counter affidavit, the claimant contended that the Public Officers’ Protection Act does not shield public officers who acted outside their constitutional or statutory duties or who acted outside the colour of his office or acted in bad faith. The claimant, who proceeded to narrate how the defendants defaulted in the process of his dismissal from the police force, also averred that he was told by his solicitor that the action of the defendants in his dismissal was done without following the principle of fair hearing and is thus null and void. On the basis of these depositions, the claimant’s counsel submitted, in his written address, that the action of the defendants complained about by the claimant was actuated by malice and bad faith and the defendants acted outside their constitutional or statutory duties when they purportedly dismissed the claimant from the Police Force. It was contended further by the claimant’s counsel that the defendants cannot, as a result, be protected by the Public Officers’ Protection Act. It is settled law that a public officer who acted outside his constitutional or statutory duties or who acted outside the colour of his office or acted in bad faith or in abuse of office will not be entitled to the protection under Section 2 (a) of the POPA. See OFFOBOCHE vs. OGOJA LOCAL GOVERNMENT (2001) FWLR (Pt. 68) 1051 at 1067; KASANDUBU vs. ULTIMATE PETROLEUM LTD (2008) All FWLR (Pt. 417) 155 at 182. However, before the public officer can be denied the protection of the Public Officers’ Protection Act for the reasons that he acted outside his constitutional or statutory duties or acted outside the colour of his office or acted in bad faith or in abuse of office, the action must have been commenced against him within 3 months from the date the cause of action arose. It is when the action is commenced within 3 months that the question whether the protection under the Public Officers Protection Act has been vitiated by the unconstitutional act or bad faith or abuse of office can be canvassed at the trial. Where the action is not filed within 3 months, the right of action of the claimant becomes barred and the validity of the actions of the defendant cannot be inquired into by the court. See EGBE vs. ALHAJI (1990) 1 NWLR (Pt. 128) 546; KASANDUBU vs. ULTIMATE PETROLEUM LTD (SUPRA). Therefore, the question whether the defendants acted outside their constitutional or statutory duties or acted outside the colour of their office or acted in bad faith cannot be inquired into at this stage, the suit having not been commenced within 3 months from the date the cause of action arose. In other words, since the action was not filed within three months from the accrual of the cause of action, this court is disentitled from considering whether the allegations of bad faith, malice or the unconstitutionality of the defendants’ acts have vitiated the defendants’ protection under Section 2 (a) of the Public Officers’ Protection Act. The Supreme Court in Chigbu v. Tonimas (Nig.) Ltd [2006] 31 WRN 179; [2006] 9 NWLR (Pt. 986) 189 SC at 210, held that the propriety or otherwise of the act of the defendants is not a relevant consideration for the applicability of the Public Officers Protection Act. The case continued that if an action against a public officer or public institution and organization is statute-barred having not been brought within the prescribed period of three months, there will be no basis for investigating the conduct of the public officer which gave rise to the action. That the conduct of the defendant as to whether he was malicious or not is irrelevant in determining whether the cause of action is statute-barred under section 2 of the Public Officers Protection Act, referring to Egbe vs. Adefarasin [2002] 14 WRN 57 and Aremo II vs. Adekanye [2004] 42 WRN 1 SC. In line with the above authorities, it is my view that it is only if this action is competent, that is if it had been commenced within 3 months from when the cause of action arose that this court will consider whether the protection afforded the defendants under the Public Officers’ Protection Act has been vitiated. In conclusion, after the date on which limitations statutes provide that legal proceedings cannot be taken, any person having a right of action can no longer institute the action as the action is statute barred and it affects the competence or jurisdiction of the court to continue to entertain the matter. See IBRAHIM vs. J.S.C, KADUNA STATE (supra); ELABANJO vs. DAWODU (2006) All FWLR (PT 328) 604. In this instant suit, the cause of action arose on 12/3/2013 but this action was commenced on 20/3/2014. The facts are clear that this suit was filed more than 3 months from the date the cause of action arose. The action is no longer maintainable. It is statute barred and this court lacks jurisdiction to continue to entertain it. In the circumstance, the appropriate order to make is to dismiss the suit. Accordingly, this suit is hereby dismissed. No order as to cost. Ruling is entered accordingly. Hon. Justice O. Y. Anuwe Judge