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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: July 01, 2015 SUIT NO. NICN/EN/210/2012 Between: 1. Nnadi Uche K. 2. Iheme Japhet 3. Okonkwo Raymond Ifeanyi 4. Williams Cheta 5. Ucheoma Precious 6. Chioma Dike Claimants/Respondents 7. Chibueze Obinna 8. Juliet I. Nwaiwu 9. Ezenwa Chuka 10. Odemenam Miriam Ihechukwu 11. Nkwoada Chijioke And 1. Governor of Imo State Defendants /Applicants 2. Attorney General and Commissioner for Justice, Imo State 3. Imo State Civil Service Commission Representation: Emeka Ozoani, with him, George Manufor and I. M. Anyanwu (Mrs.) for the Claimants/Respondents Chief E.O. Onyema, with him, P. I. Aluchuru esq. for the Defendants/Applicants RULING/JUDGMENT This suit was commenced by way of complaint on the 6th December 2012. By an amended Statement of Claim filed on the 11th day of April 2013, the claimants seek against the defendants jointly and severally, the following reliefs: 1. A Declaration of the Honourable Court that the continuous refusal by the defendants to pay to the claimants their salaries emoluments, allowances and other entitlements is wrongful, unjust, illegal, unconstitutional and a breach of the claimants contract of service and the Civil Service Rules. 2. A Declaration of the Honourable Court that the claimants are entitled to be paid their salaries, emoluments, allowances, promotions, benefits and other entitlements by the defendants under the claimants contract of service and the Civil Service Rules. 3. An Order of the Honourable Court directing/compelling the defendants to pay to each of the claimants the sum of N342,678.86 (Three Hundred and Forty Two Thousand, Six Hundred and Seventy Eighty Naira, Eighty Six Kobo) per month from June 2011 till their services are dispensed by due process of law being special and general damages. 4. An Order of the Honourable Court compelling the defendants to immediately pay to the claimants all their salaries, emoluments, allowances, promotions, benefits and other entitlements from the 6th day of June, 2011 till the judgment is delivered and thereafter to continuously pay to the claimants the said salaries, emoluments, allowances and other entitlements reflecting the salary scale structure for officers in the same cadre in the Ministry of Justice under Imo State Civil Service Commission. 5. An Order of the Honourable Court restraining the defendants either by themselves, their privies and agents from further ceasing payment of the claimants salaries, emoluments, allowances and other entitlements or in any manner terminating the employment of the claimants without following the due process of the law. By a motion on notice dated 19th February, 2015 and filed on the 23rd February, 2015 and brought pursuant to Order 11 Rule 1(1) of the National Industrial Court Rules 2007 and under the inherent jurisdiction of the Honourable Court as preserved by Section 6 (6)(a) of the 1999 Constitution of the Federal Republic of Nigeria, the defendants sought for an order of court dismissing this suit for being incompetent and statute barred. The grounds upon which the application is made are as follows: (a) This suit was filed on 6/12/2012 in respect of a cause of action which arose in June, 2011. (b) All the defendants against whom the suit was filed are Public Officers under the Provisions of the Public Officers Protection Act. (c) The defendants in paragraph 13 of their Amended Statement of Defence duly raised the issue that this suit is statute barred. (d) The claimants are not entitled to maintain an action that is statute barred and the Honourable Court lacks the jurisdiction to entertain such action The motion is supported by an affidavit of 8 paragraphs upon which the applicants have placed reliance. In their Written Address in support of the application, the Defendants/Applicants have nominated a sole issue for the consideration of the court, which is “Whether this is statue barred having regard to the provisions of the Public Officers Protection Act.” In arguing the sole issue, counsel for the applicant submitted that a challenge to the competence of an action on the ground that the action is statue barred is, unarguably, a challenge to the jurisdiction of the Court to entertain the action. The question therefore is; at what stage of the proceedings can such challenge be raised? The Supreme Court per, Uwaifo JSC, answered this poser in N.D.I.C. vs. CENTRAL BANK OF NIGERIA (2002) 95 LRCN 389 @ 400 – 401 as follows: “It is now beyond argument that the issue of jurisdiction can be raised at any stage of the proceedings even on appeal….It is plain from the authorities that at any stage sufficient facts or materials are available to raise the issue of jurisdiction, or that it has become apparent to any party to the action that it can be canvassed, there is no reason why there should be delay in raising it…..It depends on what materials are available. It could be taken on the basis of the Statement of Claim……it could be taken on the basis of the evidence received…, or by motion supported by affidavit giving the full facts upon which reliance is placed …But certainly it could be taken on the face of the Writ of Summons where appropriate.” See also COMFORT V. ALMO GASES LTD. (2006) ALL FWLR (Pt. 335) 93 @ 103,NASIR V. CIVIL SERVICE COMMISSION (2010) 1 – 2 SC 65; NPA V. AJOBI (2006) 13 NWLR (PT. 998) 471. The present objection that this suit is statute barred is premised not only upon the facts contained in the Statement of Facts but also upon the established facts as contained in the clear evidence on record as already given by the Claimants. The court is therefore entitled to resort to both sources of facts as any doubt concerning any relevant fact on this issue has been cleared by the evidence given and relied upon by the Claimants themselves. See: UNIVERSITY OF JOS vs. IKEGWUOHA (2013) 224 LRCN (Pt. 1) 169 @ 182 -183; SAVANNAH BANK LTD. vs. PAN ATLANTIC SHIPPING & TRANSPORT CO. LTD (1987) ANLR 42 @ 102-105 Undisputedly, this suit was commenced by a Complaint filed by the Claimants on 6/12/2012. In the same manner, a perusal of the court processes also shows that the three Defendants on record, namely: (1) The Governor of Imo State; (2) The Attorney General of Imo State; and (3) The Imo State Civil Service Commission are Public Officers within the purview of the Public Officers Protection Act. This is so because, it is now settled law that “Public Officers” for the purposes of the Act include both natural and artificial persons. See: IBRAHIM vs. JUDICIAL SERVICE COMMISSION (1998) 64 LRCN 504; OFFORBOCHE vs. OGOJA LOCAL GOVT (2001) 90 LRCN 2782 @ 2798 -2799. By the provisions of Section 2 of the Public Officers Protection Act, it is provided that any action, prosecution or other proceedings against any Public Officer in respect of any act or any alleged neglect or default done or made in the pursuance or execution of any law or public duty or authority must be commenced within three (3) months of the act, neglect, or default complained of. What then is the cause of action of the Claimants in this suit? In EGBE vs. ADEFARASIN (NO. 2) (1987) 1 NWLR (Pt. 47) 1 @ 20 Oputa JSC defined a cause of action as follows:- “Now let us examine the meaning of cause of action. It is admittedly an expression that defies precise definition. But it can safely be defined as the fact or facts which establish or give rise to a right of action. It is the factual situation which gives a person a right to judicial relief.” It is the view of applicants’ counsel that the factual situation which the claimants are relying upon to seek judicial reliefs in this case can be garnered from paragraphs 10(e), 11, 12 and 17 of the Amended Statement of Claim filed by the claimants on 11/4/2013 and the evidence of claimant at trial to be that they were employees of the defendants but that the defendants, contrary to their contract of employment and without hearing from them suddenly stopped the payment of the agreed salaries and allowances in June 2011 and offered no reasonable explanation as to why payment were stopped and that they have made all efforts to get the defendants to restore their salaries, allowances and other entitlements but the defendants refused. It is on the basis of the above facts that the claimants are seeking their principal relief that the Court should declare the conduct of the defendants illegal, unconstitutional and a breach of the claimant’s contract of service. From the forgoing, the claimants’ suit is one of breach of contract of employment. See: SHELL PETROLEUM CO. LTD vs. IFETA (2001) FWLR (Pt. 80) 1614 @ 1628 – 1629; OPUO vs. NNPC (2002) FWLR (Pt. 84) 11 @ 25; WAYO vs. JUDICIAL SERVICE COMMISSION, BENUE STATE (2006) All FWLR (Pt. 302) 66 @ 81, 87. Having identified what the cause of action of the Claimants is, the next question is: when did the Claimants cause of action in this case arise? In EBOIGBE vs. NNPC (1996) 6 SCNJ (Pt. 1) 71 @ page 78; (1994) 5 NWLR (Pt. 347) 649, Adio JSC stated thus: “The cause of action, generally, accrues on the date on which the incident giving rise to the cause of action occurs…” similarly, the Supreme Court, per Niki Tobi JSC, held in MOSOJO vs. OYETAYO (2003) 5 SC 134 as follows: “A cause of action arises on the date of occurrence, neglect, or default complained of and not the consequence or result of any of the above.” Furthermore, the Supreme Court in IWEKA vs. S.C.O.A. NIG. LTD (2007) 76 LRCN 572 @ 592 held, per Onu JSC, as follows:- “It is settled law that in actions for breach of contract, the cause of action accrues for the plaintiff’s benefit from the time the breach is committed and not when the damage is suffered... thus the period of limitation begins to run from the date the cause of action accrues.” In the instant case, the averments contained in the Statement of Facts filed by the Claimants, show with certainty that the Claimants’ cause of action arose in June 2011 when the Defendant stopped paying the Claimants salaries. It is also not in dispute that the Claimants commenced this action by a complaint filed on 6/12/2012. In view of the foregoing, Counsel for the applicants submitted that even if the cause of action is taken to have accrued on the last day of June 2011, it follows that counting from the 1st day of July 2011 to the 6th day of December, 2012 this suit was filed 17 months and 6 days after the accrual of the cause of action. This is clearly outside the period of 3 months stipulated by Section 2 of the Public Officers Protection Act. It is submitted therefore that this action is manifestly statute-barred. See: SANI vs. OKENE LOCAL GOVERNMENT TRADITIONAL COUNCIL (2008) 164 LRCN 117; YARE vs. NATIONAL SALARIES, WAGES AND INCOME COMMISSION (2013) 219 LRCN (Pt. 2) 53 NASIR vs. CIVIL SERVICE COMMISSION (2010) 1 – 2 SC 65. What therefore is the consequence for a party who fails to file his action within the time frame prescribed by law? In EBOIGBE vs. NNPC (1996) 6 SCNJ (pt.1) 71 @ 78; the Supreme Court per Adio JSC stated the law as follows: “an action commenced after the expiration of the period within which an action must be brought, stipulated in a statute of limitation is not maintainable… In short, when the Statute of Limitation in question prescribes a period within which an action must be brought, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period.” Following from the above, the further question arises: What is the effect on the jurisdiction of the court where an action before it is shown to have been filed outside the prescribed statutory period. In RALEIGH INDUSTRIES (NIG.) LTD vs. NWAIWU (1994) 4 NWLR (Pt. 34) 760 @ 772, the Court of Appeal held as follows:- “Once an action is caught by the Limitation Act, the court has no jurisdiction to entertain the matter. There is a feature in the case which prevents the court from exercising its jurisdiction and further the condition precedent to the exercise of jurisdiction is not fulfilled.” See: also COMFORT vs. ALMO GASES LTD (supra) In view of all the foregoing, it is clear that upon the facts disclosed in this suit, this action ought not to be allowed to continue as the same is statute barred and the Court lacks jurisdiction to continue hearing the same. In WESTMINISTER BANK LTD vs. EDWARDS (1942) 1 All ER 470 @ 472, Lord Wright stated the law as follows:- “Now it is clear that a court is not only entitled but bound to put an end to proceedings if at any stage and by any means it becomes manifest that they are incompetent.” In same view, in WILLIAMS vs. WILLIAMS (1995) 27 LRCN 147 @ 162, the Supreme Court stated as follows- “Where therefore, it is obvious from the facts before the court that no further proceedings would help a case, there is inherent jurisdiction in the court to dismiss or strike out the claim as the case may be on submission made to it….” Counsel urged the Court to resolve the sole issue for determination in the affirmative by holding that this suit is statute-barred and therefore the Court lacks jurisdiction to continue hearing the same. As to the proper order which the Court should make in the circumstances of this case, the Supreme Court stated the law in NIGERIAN PORTS AUTHORITY PLC vs. LOTUS PLASTIC LTD (2006) 134 LRCN 549 @ 579 as follows: “In this respect, the action of the 1st Respondent against the appellant which was statute barred could not have been properly and validly instituted. The action was therefore not maintainable. To this end, the position of the law is trite. Where a defendant raises a defence that the Plaintiff’s action is statute barred and the defence is sustained by the trial court, the proper order for the trial court to make is an order of dismissal of the Plaintiff’s action and not to merely strike it out.” Counsel concluded by urging the court to follow the decision of Court delivered on 10/2/15 in Suit No. NICN/EN/92/2012 Oguguo Sylvaline I. & 42 Ors. vs. Governor of Imo State & 3 Ors, the facts and circumstances of which are on all fours with the facts of this present case. The Claimants/Respondents in opposition have filed a counter affidavit of 10 paragraphs deposed to by the 8th claimant, upon which they have placed reliance as the factual basis for opposing the application. In the accompanying written address, counsel for claimants/respondents submitted two issues for determination, to wit: 1. Whether from the claimants amended statement of claim, the suit is statute barred pursuant to the Public Officers protection Act? 2. Whether the ruling of this Honourable Court in Suit No. NICN/EN/210/2012, Oguguo Sylvanline I. & 42 Ors. vs. Governor of Imo State & 3 Ors delivered on 10/2/2015 is not delivered per-incuriam? In arguing the first issue, counsel submitted that the Public Officers’ Protection Act does not apply in the circumstances of declaratory reliefs, action on wages for work done, breach of contract, and continuing injury. In propping his argument, the history of the Public Officers’ Protection Act was exposed to reveal its purport as not being an absolute piece of legislation devoid of exceptions but a protection of the of public officer in their individual capacity and public bodies in the discharge of public duties. See ALAPPIKI vs. GOVERNOR OF RIVERS STATE (1991) 8 NWLR (Pt. 211) Pg. 575 Section 2 of the Public Officers Protection Act provides that:- “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 of Law or of any public duty or authority, or in respect of any alleged neglect or default in execution of any such Act, Law, duty or authority, the following provisions shall have effect; a. The action, prosecution or proceedings shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of a continuance of damage or injury, within three months next after the ceasing thereof; There is no controversy to the effect that the defendants/applicants are public officers, see Ibrahim vs. J.S.C. Kaduna State (1998) 12 S.C. Pg. 20. According to counsel, it is the law that for a public officer to take the advantage and protection provided under the Public Officers Protection Act, it must be established that the act was done in pursuance of or execution of any law, duty or authority. In EKEOGU vs. ALIRI (1991) 3 NWLR (Pt. 179) Pg. 258. The Supreme Court held that the Act is designed to protect a public officer against any action, prosecution or other proceeding and for any act done in pursuance of or execution of any law, public duty, or authority, or for any alleged neglect or default in the execution of any law, duty or authority. See also FASORO vs. MILBOURNE (1923) 4 NLR Pg. 85. In YABUGBE vs. C.O.P. (1992) 4 NWLR (Pt. 234) Pt. 152, the Supreme Court held that the PUBLIC OFFICERS’ PROTECTION ACT does not afford protection for conduct that is criminal or acts done outside the scope of employment/authority. See also on this the case of EKEMODE vs. ALAUSA (1961) 1 All NLR Pg. 135. Flowing from the foregoing, it is the submission of counsel that the 1st and 2nd defendants’ interference with any aspect of the employments of the claimants/respondents cadre of service is unconstitutional. Having regard to the provisions of Section 197 (1) (a) & (2) and Part II of the third schedule to the 1999 Constitution of the Federal Republic of Nigeria as amended. Section 197 (1) (a) of the 1999 Constitution of the Federal Republic of Nigeria provides: (1) (a) There shall be established for each state of the Federation the following bodies namely; (a) State Civil Service Commission, (2) The composition and powers of each body established by subsection (1) of this section are as set out in part II of the third schedule of this constitution. PART II, THIRD SCHEDULE to the 1999 Constitution of the Federal Republic of Nigeria provides thus: Section 2 (1) The commission shall have power without prejudice to the powers vested in the Governor and the State Judicial Service: (a) Appoint persons to offices in the State Civil Service and (b) Dismiss and exercise disciplinary control over persons holding such offices. (2) The commission shall not exercise any of its powers under sub-paragraph (1) of this paragraph in respect of such offices of heads of divisions of ministries or of departments of the government of the state as may from time to time be designated by an order made by the governor except after consultation with the head of the Civil Service of the State”. It is contended by counsel that the cadre of employment of the claimants/respondents as borne out of their respective letters of employment already tendered before the Court are undoubtedly outside the powers of the 1st and 2nd defendants. The implication of this is that whatever acts of interference of the said 1st and 2nd defendants in this case is an act done outside the scope of their duty/authority/powers. See EKEMODE vs. ALAUSA (supra) EKEOGU vs. ALIRI (supra). Counsel cited the case of F.C.S.C vs. Laoye (1989) 4 SC (Pt. 11) Pg. 1 @ 11 ratio 40, in support of this contention where the court held: “It is a fact, as shown from the re-cord, that the Respondent had been queried by the Ministry of external Affairs on the allegations made against him and that he answered the queries. However, the Ministry of External Affairs is not the body responsible to discipline the officer. It is the duty of the Civil Service Commission, the 1st Appellant to do so”. Counsel submitted that the 1st and 2nd defendants has no business to interfere with the employment of the claimants and their claim for protection under the Public Officers Protection Act is of no moment and should be disregarded. Similarly according to counsel, the claimant’s cause of action arose from the unconstitutional acts of the 1st and 2nd defendants that are still continuing and as such the Public Officers Protection Act does not afford them any protection from the claimants’ suit or from actions emanating from declaratory reliefs, action on wages for work done, breach of contract. See the case of SALAKO vs. L.E.D.B & Anor 20 NLR Pg. 169, the Supreme Court per de Commarmond, SPJ (as he then was) held thus; “I am of opinion that section 2 of the public officers protection ordinance does not apply in cases of recovery of land, breach of contract, claims for work and labour done”. This decision was affirmed in the case of NIGERIAN PORTS AUTHORITY vs. CONSTRUZIONI GENERALI FARSURA COGEFAR SPA (1974) All NLR Pg.945. Also In F.G.N & 6 Ors. vs. Zebra Energy Ltd (2002) 12 SC (Pt. 11) Pg. 136 @ 150, the Supreme Court held inter-alia: “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” The recent decision of the Supreme Court in the case of ATTORNEY GENERAL OF RIVERS STATE vs. ATTORNEY GENERAL OF BAYELSA STATE & Anor. (2012) 7 SC (Pt. 11) Pg. 110 was considered apposite to the instant case because according to counsel, in the above cited case, the Respondents raised a preliminary objection to the suit on the grounds that, amongst others, that the suit was statute barred, having not been commenced within the period of 3 months as prescribed by section 2(a) of the Public Officers Protection Act. The Supreme Court held at pages 142-143 as follows; “In view of the foregoing and for the fact that the plaintiff is mostly seeking for declaratory reliefs having to do with the claim of entitlement to derivative funds from the disputed oil fields, which have fallen due and which they complained have not been paid, the Act cannot be invoked to defeat the grant of such reliefs. The claim of the plaintiff has raised a serious constitutional matter between the two components states and the Federal Government. In the foregoing premises I am of the firm view that the 1st defendant’s preliminary objection founded on the public officers protection Act cannot avail him. It is frivolous and it is dismissed in its entirety for lacking in merit…I hold the view that Plaintiff’s action falls squarely within this exception as the damage and injury against it is a continuing one”. Flowing from the above, counsel urged the court to hold that the Public Officers Protection Act does not apply to the instant case and dismiss the preliminary objection. In arguing the second issue raised in line of the conclusion in the defendants/applicants written address which states as follows: “In conclusion, I move in terms of the motion papers and urge the Honourable Court to grant this application. I also urge your lordship to follow the decision of this Honourable Court delivered on 10/2/2015 in Suit No: NICN/EN/92/2012, Oguguo Sylvaline 1 & 42 Ors vs. Governor of Imo State & 3 Ors, the facts and circumstance of which are on all fours with the facts of this case”. Claimants/respondents’ counsel submitted that the decision of this Honourable Court in the Oguguo Sylvaline case (supra) was delivered per incuriam because the court treated snippets of the facts in support of claimants case as if it were the relief claimed by the claimants and should not be considered in resolving this application, the case of ATTORNEY GENERAL RIVERS STATE vs. ATTORNEY GENERAL BAYELSA STATE (supra) was relied on instead as being more appropriate and urged the court to dismiss the preliminary objection with substantial cost for lacking in merit. In their reply on points of law filed in reaction to the Claimant’s address, the Defendants submitted that certain submissions made by the Claimants’ Counsel in the said Written Address are inapplicable to the circumstances of this suit and should therefore be discountenanced. Therefore, in resolving the issue as to whether this suit is statute barred or not, what the Court will have recourse to is the pleadings and evidence of the Claimants and not the arguments of counsel The pleadings and evidence of the Claimants show unequivocally that their cause of action in this suit arose in June 2011 when the Defendants ceased to pay them salaries, thereby stopping their employment. It is the contention of the claimants that the act of the defendants is wrongful and a breach of the Civil Service Rules and not that the defendants have the statutory authority to employ persons into and disengage them from the Imo State Civil Service. In EKEOGU v. ALIRI (1991) 3 NWLR (pt. 179) 258, the Supreme Court held that once it is found that the public officer was acting in the performance of his public duty, the fact that is alleged that the Public Officer was negligent or fell into some default or error in the performance of that duty does not take him outside the protection of the Public Officers Protection Act. Counsel therefore urged the Court to discountenance the submissions of the Learned Counsel for the claimants on the point that the defendants were acting outside the scope of their authority because the act of the Imo State Civil Service Commission and the Governor of Imo State in employing or disengaging Civil Servants in the State Civil Service rightly qualifies as an act done in pursuance of or execution of a public duty or authority. Similarly, counsel submitted that claimants’ counsel contention that the Public Officers Protection Act does not apply in this case because this suit relates to breach of contract relying on the cases of N.P.A. vs. CONSTRUZIONI, (supra) and F.G.N vs. ZEBRA ENERGY LTD. (supra) 12 SC is misconceived because causes of action in the two cases are different from the cause of action in the instant case. In N.P.A. vs. CONSTRUZIONI, the claim was in respect of a dispute between the parties over a specific contract for the building of the 2nd Apapa Wharf extension while in F. G.N vs. ZEBRA ENERGY LTD, the claim was in respect of a dispute between the parties over the revocation of allocation of offshore Oil Blocks. None of the two cases relates to contract of employment of a Civil Servant. Also, in those two cases, the court found that the cases related to “Specific contracts” that did not arise out of the exercise of public duty or statutory powers. It is in this regard that the Supreme Court took time in the case of N.P.A vs. LOTUS PLASTICS LTD. (supra) to consider the decision in N.P.A. vs. CONSTRUZIONI (supra). After reviewing the case, the Supreme Court came to the conclusion that it is wrong to state as a general sweeping rule that the Limitation Act does not apply to cases of contract. The Supreme Court rather held that the question as to whether the protection offered by the Limitation Act would be relied upon as a defence in cases arising from breach of contract would depend on the facts upon which an individual case turns and that where the contract or transaction arose in the exercise of the statutory duties of the Public Officer, the Act will apply. Therefore the relevant consideration in each case is to ascertain whether the contract in question arose in the course of execution or in pursuance or execution or intended execution of an enactment or public duty or authority of the Public Officer. Counsel submitted that the dispute in the instant case, relates to matters of employment in the Civil Service of a state which are matters/transactions that fall within the exercise of the statutory duties/functions of the Governor and Civil Service Commission. Any complaint relating to any default in the exercise of such power is clearly covered by the provisions of the Public Officers Protection Act. The claimants in this case even made this clear in their Statement of Facts when they alleged that the act of the defendants was done in breach of the applicable Civil Service Rules. Indeed, if it is held otherwise, it follows that whatever acts of the Civil Service Commission and the Governor as it relates to employment of Civil Servants in the State Civil Service would be outside the provisions of the Act. This would practically mean the judicial abolition of the Act as it concerns Public Officers discharging statutory powers and functions of government relating to Civil Servants. Furthermore, the Public Officers Protection Act does not contain any provision excluding the application of the law to acts done in respect of employment cases. It is submitted that in determining what is covered by or excluded from the provisions of any law, recourse must be had to the provisions of the law itself. It is also settled law that once the provisions of a statute are clear and unambiguous, such provisions must be given their ordinary meaning. See TORIOLA vs. WILLIAMS (1982) 7 SC 27 @ 47 – 48. It is in this regard that the Supreme Court held in EKEOGU vs. ALIRI (supra) that the provisions of the Public Officers Protection Act are clear and unambiguous and “that its provisions apply to an action brought against a public officer for any act done either (i) in pursuance or intended execution of any law or public duty or authority; or (ii) in respect of any alleged neglect or default in the execution of law, duty or authority”. The law did not state that the Act will be excluded where the alleged neglect or default in the execution of law, duty or authority relates to the employment of a Civil Servant. It has been held that the court has no powers to read into a statute provision that are not contained therein and that it will be an “act of violence” and amount to “judicial legislation” to read into a statute provisions that are not contained therein. See OKUMAGBA vs. EGBE (1965) NSCC 46. It is the submission of counsel that as long as the alleged neglect or default complained about was committed in the execution of the public duty or authority, the Public Officers Protection Act applies notwithstanding that the act relates to the contract of employment of a Civil Servant. It is in the light of all the above that the courts have consistently upheld the application of the Public Officers Protection Act in cases relating to contracts of employment. See the decisions of the Supreme Court in NASIR vs. CIVIL SERVICE COMMISSION (supra); YARE vs. NATIONAL SALARIES, WAGES AND INCOME COMMISSION (supra) as well as the several consistent decisions of this Court including the decision in Suit No. NICN/EN/158/2012; Louis Emeribe vs. Governor of Imo State & Ors delivered on 28/4/14. The argument of the Claimants’ Counsel that the case of the Claimants is a “case of a continuance of damage or injury” is misconceived having regard to the nature of the case presented by the Claimants. Counsel submitted that In the instant suit, the case of the claimants, is that they had been in the employment of the Imo State Government until the defendants suddenly and unlawfully stopped their salaries in June, 2011 contrary to the Imo State Public Service Rules and that all the efforts they have made since then for the restoration of payments to them were refused by the defendants. It is on that basis that they claim in their principal reliefs that the said act of the defendants be declared illegal and unconstitutional. The case of the claimants is not that they are being owed salaries for work they did without being paid. The act of stoppage of their salaries is a single incident that was done and accomplished in June 2011; it is by no means, a continuing act and contended that it is settled law, that the continuance of injury or damage in the context of the limitation law means the continuance of the act which caused the injury or damage and not the continuance of the injurious effect of the legal injury. See OBIEFUNA vs. OKOYE (1961) All NLR 357, NNAMDI AZIKIWE UNIVERSITY AWKA vs. NWEKE (2008) All FWLR (Pt. 428) 343 @ 350. The case of the claimants according to counsel, shorn of clever subterfuges, is a simple complaint about disengagement from work. See SHELL PETROLEUM CO. LTD vs. IFETA (2001) FWLR (Pt. 80) 1624 @ 1628 – 1629; OLAFIMIHAN vs. NOVALAUTECH LTD (1998) 4 NWLR (PT. 547) 608 @ 619 – 620. It does not fall into the category of cases contemplate by the decision in AG RIVERS STATE VS. AG BAYELSA STATE (supra). Counsel argued that the argument of claimants’ counsel in paragraphs 3.15 – 3.20 of his Written Address that the decision of His Honourable Court delivered on 10/2/2015 in Suit No. NICN/EN/210/2012 Oguguo Sylvaline & Ors. vs. Govt. of Imo State was given per incuriam is misconceived because any argument as to whether the said decision is right or wrong can only be canvassed before an appellate court and not before this Honourable Court. Secondly the decision is not in conflict with the decision in AG RIVERS STATE vs. A.G BAYELSA STATE. According to counsel, in determining what the cause of action of a claimant is, the court looks at the facts as stated in the Statement of Claim and not just on the reliefs formulated in the suit, reliefs are just the redress sought to assuage or soothe the injury or damage alleged to be done to the claimant by the act of the defendant complained of; the facts constituting the complaint that entitles the claimant to the reliefs constitute the cause of action. See EGBE vs. ADEFARASIN (1987) 1 NWLR (Pt. 47) 1; UBN vs. UMEODUAGU (2004) 121 LRCN 4972.Counsel urged the Court to grant this application and dismiss this suit. Before proceeding to the determination of the main issue in this ruling, I find it necessary to touch on the second issue raised by the claimants/respondents as to whether the ruling of this Court in Suit No. NICN/EN/210/2012, Oguguo Sylvanline I. & 42 Ors. vs. Governor of Imo State & 3 Ors delivered on 10/2/2015 was not delivered per-incuriam. This is vital because a court is bound by its own decisions and can only revoke same where it is given per incuriam. A decision given per incuriam is one which has been rendered inadvertently. In ROSSEL vs. ACB LTD (1993) 8 NWLR (Pt. 312) Pg.382 (Pp. 51-52, paras. C-B), OWOADE, J.C.A (as he then was) held that a per incuriam decision arises in the situation: “…where the Judge has forgotten to take account of a previous decision to which the doctrine of stare decisis applies. For all the care with which Attorneys and Judges may comb the case law, errare humanum est, and sometimes judgment which clarifies a point to be settled is somehow not indexed, and is forgotten. It is in cases such as these that a judgment rendered in contradiction to a previous judgment that should have been considered binding, and in ignorance of that judgment, with no mention of it, must be deemed rendered per incuriam; thus it has no authority. The same applies to judgment rendered in ignorance of legislation of which they should have taken account. For a judgment to be deemed per incuriam, that judgment must show that legislation was not invoked." From the decision above, can it be rightly said that the ruling of this Court in suit No. NICN/EN/210/2012, Oguguo Sylvanline’s case was given in contradiction to a previous judgment that should have been considered binding or rendered in ignorance of legislation of which they should have taken account? I think not. The case of ATTORNEY GENERAL OF RIVERS STATE vs. ATTORNEY GENERAL OF BAYELSA STATE (supra) as explained in the latter part of this ruling is distinguished from the instant case and as such cannot operate as a judgment that should have been binding on this court. Conversely, assuming but not so holding, that the court is inclined to align with the submission of claimants’ counsel urging the court not to be bound by its decision in Oguguo Sylvanline’s case in the resolution of the instant case, such alignment will amount to delivering a remedy of setting aside the decision in Oguguo Sylvanline’s case which is not appropriate for a decision reached per incuriam which can always be appealed against and avoided as authority or precedent for subsequent cases. See the case of ONYEKWELI vs. INEC (2009) 6 NWLR (Pt. 1136) 13 at 32 (per Ogunwumiju, JCA). I therefore hold that the claimants’ issue two has no bearing on the issue to be addressed in this ruling. I have carefully considered the processes relevant to this application and one main issue presents itself for determination in the application. The issue is: Whether the Claimants’ suit is statute barred? In paragraph 13 of their amended statement of defence, the defendants pleaded the facts that the claimants’ suit is statute barred by virtue of the Public Officers Protection Act. Sequel to this averment, the defendants have now filed the instant motion praying this court to dismiss the claimants’ suit on the ground that this court lacks jurisdiction to entertain same for the various reasons that the suit is incompetent and statute barred. The facts relied upon by the defendants as constituting the lack of jurisdiction were deposed to in the affidavit in support of the motion where it was stated that the claimants’ cause of action arose in June 2011 while they filed this suit on 6/12/2012. By the provision of the Public Officers Protection Act, the claimants’ suit against the defendants has become statute barred. In opposing the application, the claimants filed a counter affidavit wherein they denied the facts deposed to by the defendants as constituting the facts of the statute bar. The claimants in their address further argued that the injury to the claimants is a continuing injury and that their claim is for salaries and allowances withheld since June 2011. The provision of the POPA relied on by the defendants as having affected the claimants’ suit is Section 2 (a) of POPA. The defendants’ Counsel has submitted in his written address that by section 2 (a) of the POPA, this suit ought to have been instituted against the defendants, who are public officers, within 3 months from the accrual of the cause of action in June 2011. This suit, having been filed on 6/12/2012, has become statute barred. The said Section 2 of the Public Officers’ Protection Act provides: “2. Where any action, prosecution or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any Act or Law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Act, Law, duty or authority, the following provision shall have effect: (a) The action, prosecution or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of a continuance of damage or injury, within three months next after the ceasing thereof.” The above provision is very clear and unambiguous. It is to the effect that an action against a public officer in respect of any act done in pursuance or execution of any Act or law or of public duty or any default in respect of same can only be commenced within 3 months of the accrual of the cause of action except in the case of continuance of the damage or injury in which case the complainant must institute the action within 3 months after the cessation of the damage or injury. From the wordings of the provision, before a person can take protection under the section, it must be shown that- i. The person against whom the action is commenced is a public officer or person acting in the execution of public duties within the meaning of the Act. ii. The act done by the person in respect of which the action is commenced must be an act done in pursuance or execution of any law, public duty or authority or in respect of an alleged neglect or default in the execution of any such law, duty or authority. See IBRAHIM vs. J.S.C KADUNA STATE (1998) 12 SC 20. In this matter, and having read through the processes filed by the parties, it is not in dispute that the defendants are public officers and they have been sued in this suit in respect of their default in the execution of a law or public duty. See paragraphs 2, 3 and 4 of the claimants’ amended statement of claim. It is clear therefore that the defendants can take protection under the POPA in this action. That being the case, is this suit statute barred? By the provision of section 2 (a) of POPA, this action ought to be commenced against the defendants within 3 months of the accrual of cause of action except in a situation of continuance of damage or injury, in which case the suit must be commenced 3 months after the damage or injury have ceased. In determining whether this action is statute barred, there is the need to determine when the cause of action arose and when this suit was filed. The defendants, in paragraphs 3 and 6 (a) of the affidavit in support of the motion, deposed to the facts that the claimants filed this suit on 6/12/12 while they pleaded the fact and also gave evidence that their cause of action arose in June 2011. This view of the court notwithstanding, the law is even settled that in determining whether a suit is statute barred, the processes to which recourse should be had are the writ and the statement of claim. It is from these processes the date of accrual of the cause of action and the date the suit was filed can be deduced. See the Supreme Court cases of JSF INV. LTD vs. BRAWAL LINE LTD (2011) All FWLR (Pt. 578) 876 at 902; ELABANJO vs. DAWODU 2006 All FWLR Pt. 328 604 at 646. In AMEDE vs. UBA (2009) All FWLR (Pt. 469) 479 at 506/507, the principle was stated this way- “In order to determine if a party’s action is statute barred, the court is only enjoined to look at the plaintiffs’ claims. The period of limitation is determined in a case by looking at the writ of summons and the statement of claim which alleges when the wrong suffered by the plaintiff was committed and placing it side by side with the date on which the writ was issued”. Also in GULF OIL CO LTD vs. OLUBA (2003) FWLR (Pt. 145) 712 at 721, it was held that recourse can be had to the writ and the statement of claim in determining if an action is statute barred without necessarily taking oral evidence. The same position was taken in DAWODU vs. AJOSE (2011) All FWLR (Pt. 580) 1334 at 1345 where it was stated that statute of limitation can be raised in limine without any evidence in support. 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 or oral evidence. I now turn to the main issue. I have looked at the complaint and the statement of facts in order to ascertain the date on which the claimants’ cause of action accrued and when this suit was filed. There is no dispute as to when the suit was filed. It is disclosed on the complaint that this suit was filed on 6/12/2012. What however appears to be the contention between the parties is when the cause of action in this suit arose? While the defendants hold the position in this motion that the claimants, by their averments in paragraph 12 of the amended statement of claim, their cause of action arose in June 2011, the claimants on the other hand have contended that their cause of action is a continuing injury which had not ceased at the time of the commencement of this suit. According to the claimants, time should only begin to run against them 3 months after the injury has ceased. With these varied positions held by the parties, it will be necessary to determine when the claimants’ cause of action actually arose and whether their cause of action is a continuing injury which has not ceased. This step is vital at this point because when dealing with statutes of limitation, it is necessary to determine the precise date upon which the cause of action arose, as time will begin to run from the time the cause of action arose. How does the court determine when a cause of action has accrued? This same question was posed by Agube JCA in the case of ACCORD PARTY vs. GOVERNOR OF KWARA STATE (2011) All FWLR (Pt. 555) 220 at 277 and the learned jurist answered the question by reference to the dictum of Tabai JSC in the case of ADEKOYA vs. FHA (2008) NSCQR (Vol. 34) 952 at 965-966 where it was held that – “A cause of action cannot be said to accrue to the appellant unless and until there emerges a factual situation which gives her a right of action”. In CROSS RIVER UNIVERITY OF TECHNOLOGY vs. OBETEN (2012) All FWLR (Pt. 641) 1567 at 1583, it was held that- “A cause of action accrues on the particular date which gave rise to the incident in question. For the purposeful intendment of statutes with stipulation of durational limitation, the clock begins to wind down and time begins to run from the moment which culminates into the date on which the cause of action accrues”. Also in AMEDE vs. UBA (SUPRA) at 507, it was held that the test of determining when a cause of action accrues is when it can be said or there exist in the person who can sue and another who can be sued and all facts have happened which are material to be proved to entitle the plaintiff to succeed. The same view was held in DAWODU vs. AJOSE (2011) All FWLR (Pt. 580) 1334 at 1348 where it was stated that- “Time begins to run for the filing of an action when the cause of action arose. This means that once there exist two people with interest at variance to each other over a subject matter, then the aggrieved party must go to court timeously” What is the factual situation in this case which gave the claimants the right of action? It is the day the factual situation came into existence that their cause of action arose. In their amended statement of claim, the claimants narrated their grievance resulting to this suit and they particularly pleaded in paragraphs 12 and 15 as follows- “12. The claimants state that the defendants without hearing from them in any manner suddenly STOPPED the payment of the agreed salary and allowances in June 2011 contrary to the contract of employment between the claimants and the defendants as discernible from the totality of the documents constituting same and in violation of the 1999 constitution which entitles them to hearing. The action of the defendants is also in breach of the applicable Civil (Public) Service Rules.” 15. The claimants aver that a Pre-action Notice and letter of demand dated the 11th day of September 2012 was sent to the defendants to pay or cause to be paid to the claimants outstanding remunerations due to the claimants and thereafter continue to pay the claimants as at when due but the defendants ignored same. The letter is pleaded and shall be founded upon during trial.” From these facts of the claimants’ case, it can be seen that the cause of their complaint was the stoppage of their salaries by the defendants which action happened in June 2011. The claimants’ demand for payment of the salary has not been successful since June 2011. It is therefore clear that the claimants’ cause of action arose in June 2011. The date this suit was filed on 6/12/2012 establishes the fact that it was filed more than 3 months after the cause of action accrued. It is in view of this fact that the defendants have now contended that the claimant’s suit is statute barred having not been instituted within three (3) months of the accrual of the cause of action. The claimants have contended that their complaint, that is the non-payment of salaries to them, is a “continuing injury” which injury has not ceased; therefore, their suit is not statute barred. The paragraphs of the Claimant’s statement of facts set out above show the basis of their cause of action. I cannot find any element of continuance of injury in these paragraphs. The claimants pleaded that their salary was “stopped” in June 2011 and of particular relevance to this issue is the claim in relief i of the complaint and their amended statement of claim. There the claimants claim a declaration to the effect that the “cessation” of the salary is unjust, illegal and unconstitutional. When did the payment of their salary cease? June 2011. For all intents and purposes, their cause of action commenced and was complete at that period. The claimants’ counsel cited and relied on the case of ATTORNEY GENERAL OF RIVERS STATE v. ATTORNEY GENERAL OF BAYELSA STATE to support his contention that the non-payment of their salaries is a continuing injury. The point must be made here that the facts of ATTORNEY GENERAL OF RIVERS STATE v. ATTORNEY GENERAL OF BAYELSA STATE case can be distinguished from this case. In that case, the bone of contention was in respect of a boundary dispute between two component states, in particular certain oil fields in the disputed area were being laid claim to by the respondents as a result of which the revenue generated from the wells were been paid to the federation account which were part of the revenue allotted to the respondents under the derivative formulas. It was on the basis of these facts the Supreme Court held that the reliefs claiming entitlements to derivative funds that bordered on territorial jurisdiction which are crucial constitutional issues between the federation and a component state and another component state that the Public Officers’ Protection Act could not operate to defeat. Paying derivative funds out of disputed boundaries that led to the creation of Rivers State/Bayelsa State escrow account to the 1st respondent alone is a continuing injury or a fresh cause of action in respect of the nonpayment of funds that had fallen due to the appellants periodically. The situation is clearly different in this case. The defendants stopped payment of any salaries to the claimants in June 2011 and they have not pleaded anywhere that the stoppage of their salaries emanated from a disputed contract of employment. It appears to me that the stoppage of the claimant’s salary is not dissimilar from suspension (in this case, of their salary). Such an action cannot be said to be a continuing injury. This was the view of the court in NNAMDI AZIKIWE UNIVERSITY, AWKA vs. NWEKE (2008) All FWLR (Pt. 428) 343. The respondent in that case was suspended on 22nd September 2004 and placed on half salary from the date of his suspension. He commenced the suit on 9 February 2005. The respondents counsel did contend that the suspension was a continuing act not caught by POPA. The Court of Appeal, at page 350 of the report held that suspension started on a definite date which was the date of the cause of action for all intent and purposes and there is no basis to argue that the suspension was a continuous act not caught by the Public Officers Protection Act. It is my view therefore that the claimants’ cause of action, which arose in June 2011, was not a continuing injury or damage as contemplated in Section 2 (a) of the Public Officers’ Protection Act. In his further contention that this suit is not caught by the Public Officers’ Protection Act, the claimants counsel has argued in his written address that the action of the defendants complained about was done outside the scope of their legal authority as has been shown in the evidence adduced by the claimants. It was contended by counsel that the defendants cannot, as a result, be protected by the Public Officers’ Protection Act in this instance. As rightly submitted by the claimants’ counsel, abuse of office or bad faith are factors that deprive a party who would otherwise be entitled to protection under Section 2 (a) of the Public Officers’ Protection Act which 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 malice or bad faith or a public officer’s illegal acts can only be applied to disentitle the public officer from the protection of POPA 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 case of EGBE vs. ALHAJI (1990) 1 NWLR (Pt. 128) 546 at 585 relied on by the claimants counsel in his argument on this point. In EGBE vs. ALHAJI case, the Supreme Court clearly explained when the issues of malice or bad faith will vitiate the protection under the Public Officers’ Protection Act. Per 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” On his part, 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 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.” The Court of Appeal in the case of RAHAMANIYYA UNITED (NIG) LTD. vs. MINISTRY FOR FEDERAL CAPITAL TERRITORY & ORS [2009] 43 WRN 124 CA at 145. at page 146, applying the principle of the Supreme Court in CHIGBU vs. 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. It was held 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. It held further, referring to Egbe v Adefarasin [2002] 14 WRN 57 and Aremo II v. Adekanye [2004] 42 WRN 1 SC 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. Also in AG Federation vs. Ali Abacha (2010) LPELR-8997 (CA), where the Court of Appeal Per Okoro JCA in determining the parameters within which a public officer can take protection under the Public Officers’ Protection Act, held that as long as the public officer acts in the usual function of his office, whether he does it correctly or wrongfully, he is protected by the section. It is not open to the court to pry into his conduct in carrying out his official assignment in order to determine whether the Act applies or not. In view of the foregoing opinions of the learned jurists, the question whether the defendants acted illegally, in bad faith or malice is irrelevant 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 malice has vitiated the protection afforded the defendants under the Public Officers’ Protection Act. The argument of the claimants counsel is that since evidence has been taken from the claimants, relying on the case of FAJIMOLU vs. UNILORIN, this court should consider the evidence of bad faith and malice to strip the defendants of the protection. It should be noted that this is not a final judgment but only a ruling on the defendants’ motion. Evidence has not been taken from the defendants. What the claimant is urging me to do by considering evidence already on record is to delve into the substantive case. I am not permitted to do that at this stage. I am in agreement with defendants’ counsel in his reply on points of law, that in as far as the claimants’ suit was filed outside the statutorily prescribed 3 months, the issue of malice or bad faith has become irrelevant. In my view, it is only if this action is competent, that is it had been commenced within 3 months, that this court can consider whether the protection has been vitiated by malice or bad faith. There is no doubt 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 defendant within the statutorily prescribed 3 months. Consequently, the suit is statute barred. In NWAOGWUGWU vs. PRESIDENT FRN (2007) All FWLR (Pt. 389) 1327 at 1359, it was held that a legal right to enforce an action is not a perpetual right but a right limited by statutes. After the date on which the applicable statute provides that legal proceedings cannot be taken, any person having a right of action can no longer completely institute the action as the action is statute barred and it affects the competence or jurisdiction of the court. In this instant suit, the cause of action arose in June 2011 when the defendants stopped the claimants’ salaries. However, the present action was not commenced until 6th December, 2012, a period of about 18 months since the cause of action arose. It is clear that the claimant’s suit was not filed within 3 months from the date of the stoppage of their salaries. The action is no longer maintainable. The right of the claimants to any relief has been extinguished by law and this action is consequently incompetent. This court lacks jurisdiction to determine this suit. In the circumstance, the appropriate order to make is to dismiss the suit. Accordingly, the claimants, having commenced this action against the defendants after the period specified in Section 2 (a) of the Public Officers’ Protection Act, the action is statute barred and it is hereby dismissed. Parties are to bear their costs. Ruling is entered accordingly. Hon. Justice O. Y. Anuwe Judge