DR (MRS) BRIDGET ENE AUDU -VS- MINISTER OF FEDERAL CAPITAL

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFORE HIS LORDSHIP THE HONOURABLE JUSTICE E. N. AGBAKOBA

DATED 17^TH APRIL, 2018

SUIT N0: NICN/ABJ/141/2017

BETWEEN

DR (MRS) BRIDGET ENE AUDU………………………………….CLAIMANT

AND

MINISTER OF FEDERAL CAPITAL TERRITORY
FEDERAL CAPITAL DEVELOPMENT AUTHORITY………DEFENDANTS

REPRESENTATION

N. EGWUONWU for the claimant
S. TANIMU for the defendants

JUDGEMENT

The claimant, by a General Form of Complaint with the accompanying frontloaded documents, approached the Court for the following reliefs:

(a) A declaration that the claimant is an employee/servant of the defendants and as such is entitled to her salary, promotion, allowances and benefits accruable to her as a Senior Pharmacist GL. 12 from August, 2013 till date.

(b) A Declaration that the failure to reabsorb the claimant into the service of the defendants after her study leave is wrongful, improper, unlawful, null and void and of no effect whatsoever.

(c) A Declaration that the failure of the defendants to transfer the years of service of the claimant from the defendants service to the National Universities Commission (NUC) on her request is unwarranted, improper, illegal, null and void.

(d) An Order of court directing the defendants to compute and pay to the claimant all her entitlements salaries, benefits and other emoluments at GL 12 or otherwise from August, 2013 being the date of her supposed resumption to work till date.

(e) An Order of court directing the defendants to transfer the claimant service or personal records of her service with the defendants to the National Universities Commission.

(f) N50,000,000.00 being general damages for the defendants’ failure to reabsorb the claimant into the service of the defendants from August 2013 and the trauma, stress, embarrassment and agony occasions thereby till date and the failure to transfer her services or her personal file to the National Universities Commission (NUC) till date.

(g) N2, 000,000.00 (Two Million Naira) being legal fees and cost of prosecuting this suit.

THE Defendants/Applicants filed a NOTICE OF PRELIMINARY OBJECTION on 24^th January, 2018 and dated 23^rd January, 2018, objecting to the jurisdiction of this Honorable Court to entertain and determine this suit on the following grounds:

1) This suit is statute barred by virtue of Sec. 2 (a) of the Public Officers Protection Act, Chapter P41, Vol. 14, LFN, 2004.

2) This suit as presently brought is incompetent.

WRITTEN ADDRESS IN SUPPORT OF NOTICE OF PRELIMINARY OBJECTION Wherein the defendant raised the singular issue

ISSUE

Whether this action is maintainable against the Defendants in view of section 2 (a) of Public Officers Protection Act, Chapter P41, Vol. 14, LFN, 2004.

Learned Counsel to the defendants submitted the a claim that a suit is statute barred is usually premised on the fact that the suit was commenced outside the statutorily provided period. That to determine the limitation period of an action, one has to look at the Writ of Summons and the Statement of Claim so as to verify when the alleged wrong giving rise to the suit was committed, and compare same with the date the action was instituted, if the time on the Writ is beyond the period allowed by the statute, then the action is statute barred. Hassan v. Aliyu (2010) 17 NWLR (Pt. 1223), 547 at 549, ratio 7 and Ofili v. C.S.C (2008) 2 NWLR (Pt. 1071), 238 at 241.

It is Defence counsel’s contention that the Defendants are public officers by virtue of Section 2(a) of the Public Officers Protection Act. Sulgrave Holdings Inc. V. F.G.N (2012) 17 NWLR (Pt. 1329,309 at 319; A.G. Federation V. Abacha (2010) 17 NWLR (Pt. 1221), 1 at 9, Asogwa V. Chukwu (2003)4 NWLR (Pt. 811), 540 at 551 and F.B.I.R. vs. l.D.S. Ltd (2009) 8 NWLR (Pt. 1144), 615 at 625. Counsel argued that the Defendants had been sued for an act done in the course of executing their lawful/public duties and therefore, cannot be sued outside the three months period provided in Section 2(a) of the Public Officers Protection Act. N.I.C. V. Aminu (2012) 8 NWLR (Pt. 1302), 330 at 336.

He also submitted, that in order that a person may be protected by the provisions of the Section, it has to be established that the party against whom the action was commenced was a Public Officer and that the act done by him in respect of which the action was commenced was an act done in pursuance or execution of any law or of any public duty. Fokolade vs. Public Service Commission (1993) 1 NWLR (Pt. 271)639 at 643—644. Furthermore, that from the nature of the act and omissions complained against, the Defendants are Public Officers and the act complained against, was carried out by them in pursuance or execution of appropriate laws and public duty within the extended definition given in Ibrahim vs. Judicial Service Commission (1998) 14 NWLR (Pt. 584) 1, per Karibi-white, JSC, in the earlier case of Adigun v. Ayinde & 2 Ors. (1993) 8 NWLR (Pt. 313) 516 at 533.

Counsel to the defendant contended that the averments in the Statement of Claim and some of the documents annexed thereto no doubt reveals that the acts and the defaults complained against the Defendants and which constitute the cause of action in this case bothers on the exercise or failure to exercise public duty and or law. Elabanjo v. Dawodu (2006) 15 NWLR (Pt. 1001)76 at 122. He noted that the next question at this juncture is whether the complaint by way of the present suit was made timeously, i.e. within the three months allowed by Section 2(a) of the Public Officers Protection Act from the accrual of the cause of action. Egbe v. Hon. Justice J.A. Adefarasin (1987) 1 NWLR (Pt. 47) 1 at 20, Oputa, JSC; Hassan v. Aliyu (supra) 547 at 549, ratio 7 and Ofili v. C.S.C (2008) 2 NWLR (Pt. 1071), 238 at 241.

In addition Defence Counsel argued that the Claimant ought to have filed this suit claiming for the reliefs sought within three months as provided in section 2(a) of the Public Officers Protection Act, but the Claimant filed this suit on the 11th May, 2017, after a period exceeding three months, that is, outside the statutorily provided period. Ezerebovs V. l.G.P. (2009) 11 NWLR (Pt. 1151), 117 at 1 20; Tobi, JSC in Adekoya v. F.H.A. (2008) 11 NWLR (Pt. 1099) 539 at 557, paras. B-E. He submitted further that Claimant’s case was caught up by the provision of section 2(a) of the Public Officers Protection Act, thus the condition precedent to the commencement of this suit was not fulfilled, as the suit was not initiated via due process. Thus, that this suit is incurably disabled as decided in Babalola V. Oshogbo L.G.C. (2003) 10 NWLR (Pt. 829), 465 at 483; Ajibonu V, Kolawole (1996) 10 NWLR (Pt. 476), 22 at 25; Ovie V. Ighiwi (2005) Vol. 124 IRCN, page 503 at 514, ratio 21.

On the effect of statute of limitation on right of action, counsel submitted that, “where a statute provides for the institution of an action within a prescribed period, proceeding shall not be allowed to be instituted after the time allowed or stipulated by the statute. Any action that is instituted after the period prescribed by the statute is completely barred as the right of the Plaintiff or injured person to commence the action would have been extinguished by such lawful. A.G. Federation V Abacha (supra) at page 7 and Chukwu V. Amadi (supra); Dauda V. UNAM (2002) 17 NWLR (Pt. 769), 362 at 367.

It is counsel’s submission that once the Court ascertains that an action against a public officer for an act done in pursuance or execution of law or public duty was commenced outside the three (3) months limitation period allowed by Public Officers Protection Act, the Court has a duty to give effect to the provisions of the Act regardless of the consequences. Chigbu v. Tonimas (Nig) Ltd (2006) 9 NWLR (Pt. 986) 1 89 at 210, per Oguntade, JSC. Defendant Counsel urged this Honourable Court to uphold their objection on this point and dismiss this suit for being stale. Etim V. IGP (2001) 11 NWLR (Pt. 724), 272.

The CLAIMANT’S REPLY TO DEFENDANTS’ NOTICE OF PRELIMINARY OBJECTION was filed on 8^th November, 2017. Wherein the claimant raised two distinct issues; –

ISSUES
Whether the Memorandum of Conditional Appearance and Notice of Preliminary Objection are not liable to be set aside by this court not having affixed on them the stamp and seal of M. A. Ashara, Esq. who purportedly signed the same or that of A. S. Tanimu Esq. whose name appeared under the name of M. A. Ashara, Esq.

Whether the suit of the claimant as constituted is caught by section 2(a) of the public officers’ protection act cap. P41, vol. 14, LFN, 2004.

ON ISSUE 1

Whether the Memorandum of Conditional Appearance and Notice of Preliminary Objection are not liable to be set aside by this court not having affixed on them the stamp and seal of M. A. Ashara, Esq. who purportedly signed the same or that of A. S Tanimu Esq whose name appeared under the name of M. A. Ashara, Esq.

Learned Counsel to the Claimant J. I. Ekeonu Esq. submitted that the law is that any process of court to be filed in court must have affixed on it the stamp and seal of the counsel who signs such court process or who purports to sign the same otherwise the said process shall be set aside by the court. Ardo v. INEC (2017) 13 NWLR (Pt. 1583) 450 at 483 Para. F where the Supreme Court held that the requirement for the NBA seal is mandatory although it could be regularized; Yaki vs. Bagudu (2015) 18 NWLR (Pt. 1491) 288. He contended that the Courts have held in a plethora of cases that counsel should not distort facts in order to deceive the court and that such conduct is an act of contempt. C.P.C v. Ombugadu (2013) 18 NWLR (pt. 1385) 66 at 123 paras C – E, per Ngwuta, JSC; Obidike v. State (2014) 10 NWRL (Pt. 1414) 53 at 80 Para. F, per Fabiyi, JSC; Ayode v. Spring Bank Plc. (2014) 4 NWLR (Pt. 1396) 93 at 127 – 128, per Mbaba, JCA.

ON ISSUE 2

Whether the suit of the claimant as constituted is caught by section 2(a) of the Public Officers Protection Act Cap. P41, Vol. 14, LFN 2004.

Counsel submitted that Section 2(a) of the Public Officers Protection Act 2004 LFN provides:

‘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 pubic 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:

The action, prosecution or proceeding shall not lie or be instituted unless it is commenced within three (3) months next after the act, neglect or default complained of, or in case of a continuance of damages or injury, within three months next after the ceasing thereof, Provided that if the action, prosecution or proceedings be at the instance of any person for cause arising while such person was a convict prison, it may be commenced within three months after the discharge of such person from prison “
Hassan vs. Aliyu (2010) 17 NWLR (pt. 1223); Ibrahim vs. JSC (1998) 14 NWLR (Pt. 584); I, Egbe v. Belgore (2004) 8 NWLR (Pt. 875) 336; N.E.P.A vs. Olapunju (2005) 3 NWLR (Pt. 913) 602; Alhaji vs. Egbe (1987) 2 NWLR (Pt. 56) 341.

However, that there are exceptions to the provisions of Section 2(a) of the Public Officers Protection Act aforesaid and that once the case of the claimant falls within any of those exceptions, the suit is taken out of the confines of the Act and the court is clothed with jurisdiction to entertain the matter. These exceptions include the following:-

Where there is a continuous damage or injury to the claimant, each day the damage or injury is continued without abated, constitutes fresh cause of action. Arerno II vs. Adekanye (2004) 13 NWLR (Pt. 981) 572 at 593 – 594 paras H-B; A-G Rivers State vs. A-G Bayelsa State (2013) 3 NWLR (Pt. 1340) 123 per Galadima, JSC at pages 148- 149 para H – A; NIMASA vs. Hensmor (Nig) Ltd (2015) 5 NWLR (Pt. 1452) 278 at 308 paras F – H, per lyizoba, JCA.

Counsel pointed out that the claimant will rely on paragraphs 14, 15, 19, 20, 21, 22, 23, 24, 25, 26, 27 and 29 of her Statement of claim to the effect that there is a continuous damage and injury to her occasioned by the conduct of the defendants which has not ceased till date. That the various acts of continuous injury and damage are as follows:

(a) Failure to re-absorb the claimant in the service of the defendants till date.

(b) Failure to produce her personal file or open a fresh file for her notwithstanding the relevant documents supplied by the claimant to enable the defendants do so. The loss of the file, if any, was as a result of the negligence or carelessness on the part of the defendants who had custody of the file.

(c) Failure to re-absorb the claimant or open a fresh file for her means loss of service and entitlements from 1996 when she was employed till date.

(d) Failure to transfer her service to the National University Commission (NUC) till date.

(e) Failure to pay her salary, entitlements, promotion etc. from 2013 till date.

He argued that the above constitute acts of continuous damage and injury which subsist till date and in the above circumstance Section 2(a) of the Public Officers Protection Act does not apply to this suit and does not avail the defendants. Ezeani vs. NRC (2015) 3 NWLR (Pt. 1445) 139 at 163, 165.

Another exception to the applicability of Section 2(a) of the Public Officers Protection Act is where the public officer has acted in bad faith or malice or without legal justification, the provision of the act will not be applicable.

Counsel submitted that in deciding the issue of bad faith, malice and legal justification, Orji-Abadua, JCA put it succinctly in the case of Mohammed vs. A. B.U Zaria (2014) 7 NWLR (Pt. 1407) 500 at 534 paras F – H in the following words: –

“Given the decision in Offoboche‘s case (Supra) one can, with all due respect, assert with certainty that the law does not automatically protect any public officer who had abused his position. What this connotes is that a court should not immediately dismiss an action on the ground only that the action commenced against a public officer was filed outside three months from the date of accrual of the cause of action. This crystallizes the fact that the court has to be satisfied that the act executed by the public officer was not done in bad faith or did not amount to abuse of office, that is to say, using the power to achieve personal gain, to show undue favour to another or to wreak vengeance on an opponent, or was not exercised in breach of his statutory or constitutional duties; etc. It follows, therefore, that for the court to be so satisfied, it would invariably have before it some sort of evidence either in proof or rebuttal of the same’’.

Denial of right of fair hearing is another ground upon which section 2(a) of the Public Officers Protection Act cannot apply in a given case.

Counsel submitted that this right is constitutional and any act that affects directly or indirectly, the right of a citizen from articulating his grievances in a court of law is unconstitutional. A — G Rivers vs. A – & Bayelsa (Supra) at 148 para G; Mohammed vs. A.B.U Zaria (Supra) at 537-538 paras H-A, per Orji-Abadua, JCA.

On the 3^rd February 2018 parties adopted their respective written addresses and adumbrated their positions accordingly and this matter was adjourned for this decision.

Court’s Decision

Having carefully summarized the position of both sides, the arguments of opposing counsel and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the contention of the parties and their written submission are herewith incorporated in this ruling and specific mention would be made to them where the need arises. The issue for determination in this suit to my mind is whether there is any merit to the defendants’ application.

The claimant raised the question that the defendants’ Memorandum of Conditional Appearance and Notice of Preliminary Objection were defective due to the absence of the stamp and seal of M. A. Ashara, Esq. looking at the said processes reveals that whereas the Memorandum of Conditional Appearance bears the signature of M. A. Ashara over the same name and A. S. Tanimu and bear a stamp of one Aliyu A. Mohammed who name was not listed on the process and the Notice of Preliminary Objection was also signed by A. S. Ashara but Ashara’s name was not listed as one of the lawyers in the firm representing the claimant as the process displayed Aliyu A. Mohammed and A. S. Tanimu bearing the latter’s stamp.

This court had in SUIT NO: NICN/CA/47/2015 MR JAMES AHIDO ENYIA Vs. HON. JACOB OTU ENYA delivered on the 21^st April 2016 had cause to consider a similar situation where the counsel appearing for the claimant had affixed a stamp to their process but the stamp was not that of the counsel before the court rather it was the seal of the head of chambers, bearing the name of the head of the claimants counsels chambers. The court in that suit went on to hold that “the whole concept of the stamp of seal as explained by the Nigerian Bar Association was to ensure that persons filing processes and taking up case were legitimate legal practitioners called to Nigeria Bar and licensed as Barrister and Solicitors of the Supreme Court of Nigeria. To now argue as the claimant counsel is arguing that it is permissible for a junior counsel to sign a process and affix the stamp of his principal would defeat the entire process. The judiciary had accepted the responsibility of working with the NBA to ensure that only genuine professionals are allowed to present themselves in court as Legal Practitioners and as such the courts are enjoined to uphold the use of the stamp and seal for every legal practitioner.”

In the instant case the stamp affixed is not that of appearing counsel but of a counsel not appearing in this matter. This act I find defeats the purpose of the whole exercise. This court has always drawn a distinction between failure to affix the requisite stamp and seal which makes the process voidable and can be remedied with an order of court that ‘the claimant shall affix his own stamp and seal before the next adjourn date or something of that ilk and situation when the stamp of another counsel not appearing in the matter is affixed in such situation this court holds the said process incompetent and orders its striking out. See SUIT NO: NICN/CA/47/2015 MR JAMES AHIDO ENYIA Vs. HON. JACOB OUT ENYA Supra. This flank of the Claimant’s contention I find have merit in part. And succeeds. The Memorandum of Appearance and Preliminary Objection is hereby found incompetent and is accordingly struck out.

In the event that the Superior Court do not agree with the position taken, this is how I would resolve the Preliminary Objection.

The contention of the defendant is that the claimant commenced this action outside the stipulated limitation period rendering the suit incompetent before this court for want of jurisdiction by virtue of section 2(a) Public Officers Protection Act 2014.
The statute in question is section 2(a) of the Public Officers Protection Act 2004, which provides as follows –

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 provisions shall have effect.

(a) the action, prosecution, or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of a continuance of damage or injury, within three months next after the ceasing thereof:

Provided that if the action, prosecution or proceeding be at the instance of any person for cause arising while such person was a convict prisoner, it may be commenced within three months after the discharge of such person from prison.

I find that Section 2(a) Public Officers Protection Act 2014 provides a three month moratorium for the filing of a suit against a public officer.
Which now raises the issue being whether the defendants are not entitled to the protection of this act. i.e. To whom does the POPA apply or is the Public Officer Protection act applicable to this suit.
The word Public Officer has been defined in section 7(1) of the Public Officers (Special provision) LFN2004 (formerly Act No. 10 of 1976) to mean;- “ any person who holds or has held office in

(a) the public service of a state or federal government…

(b) the service of a body whether corporate or unincorporated established under a Federal or State Law.

Section 318(1) of the CFRN 1999 defines “Public service of the Federation to mean service in any capacity in respect of the Government of the Federation and includes service as (c) any member or staff of any commission or authority established for the Federation by this constitution or by an Act of the National Assembly.”

In FGN Vs ZEBRA [2002] LPELR 3172 SC. The Supreme Court held that a public officer as stipulated in Section 2A Public Officers Protection Act not only refers to natural persons sued in their personal names but they extent to public bodies, artificial persons, institutions or persons sued by their official names or titles PER MOHAMMED JSC. Also see the cases of ALHAJI ALIYU IBRAHIM Vs. JSC KADUNA & ANOR [1998]14 NWLR (Pt.583) p.1 and SULGRAVE HOLDINGS INC.&19 ORS Vs. FGN & 3ORS[2012]17 NWLR (Pt.1329) p.309 at 338…..

The Public Officers’ Protection Act applies to both natural and artificial persons. See also. KANU v. ENUGU BROADCASTING SERVICE & ORS. (2014) 46 NLLR (PT. 148) 243; ABUBAKAR v. GOVERNOR OF GOMBE STATE (2002) 17 NWLR (PT. 797) 533; NWAOGWUGWU v. PRESIDENT, FRN (2007) 1 ALL FWLR (PT. 389) 1327.

From the foregoing I find that the defendants are entitled to the protection afforded by the Public Officers Protection Law.

In deciding whether a case is statute barred or not, the court only has to look at the writ of summons and the statement of claim alleging when the wrong was committed which give rise to the cause of action and comparing that date with the date the writ of summons was filed. If the time on the writ of summons is beyond the period allowed by the Limitation Law, the action is statute barred. See KANU v. ENUGU BROADCASTING SERVICE & ORS. (2014) 46 NLLR (PT. 148) 243; ELABANJO v. DAWODU (2006) 6 – 7 SC 24. A cause of action is said to be statute barred if in respect of its proceedings it cannot be brought because the period laid down by the Limitation Law has elapsed. EBETALEYE v. MAINSTREET BANK LTD. & ORS. (2014) 44 NLLR (PT. 141) 596 NIC; EGBE v. ADEFARASIN (1987) 1 NWLR (PT. 47) 1 @ 20.

This court further held in AGBOROH v. WAEC (2014) 43 NLLR (PT. 134) 31 NIC @ 34 that the determination of whether a suit is statute barred or not involves the determination of the date on which the cause of action arose and comparing same with the date on which the suit was filed. If the date on which the suit was filed shows that the claimant came outside the period within which he should have come to court, the suit will said to be statute barred. This comparison can be done without taking oral evidence from witnesses.

. This means it would be necessary to determine what really the cause of action is in the instant case and then determine when it arose. In the unreported SUIT NO. NICN/LA/114/2013 COMRADE ISHOLA ADESHINA SURAJUDEEN V. MR. ANTHONY NTED & ANOR the ruling of which was delivered on July 10, 2014 this Court (relying on ‘lai Oshitokunbo Oshisanya’s An Almanac of Contemporary Judicial Restatements – With Commentaries – The Basebook, Vol. ia, Administration of Justice and Evidence (Spectrum Books Limited: Ibadan), 2008 at page 3 paragraphs 10 – 13) defined cause of action as –

…the cause of action is said to announce a conclusion of law i.e. that the known facts meet the requirements of a particular, recognized legal basis for obtaining relief from a Court. Cause of action is accordingly the aggregate of facts giving rise to or upon which an enforceable claim is anchored. It is the fact(s) that establish or give rise to a right of action. Cause of action, therefore, consists of all those things necessary to give a right of action. The things so necessary must have happened and so includes every material thereof that entitles the plaintiff to succeed that the defendant has the right to traverse.

See also AG, Federation v. AG, Abia State & ors [2001] 11 NWLR (Pt. 725) 689 at 733.

In the instant case the claimant instituted this action on the 11^th May 2017, from the reliefs sought, mainly

(b) A Declaration that the failure to reabsorb the claimant into the service of the defendants after her study leave is wrongful, improper, unlawful, null and void and of no effect whatsoever.

(e) An Order of court directing the defendants to transfer the claimant service or personal records of her service with the defendants to the National Universities Commission.

(g) N2, 000,000.00 (Two Million Naira) being legal fees and cost of prosecuting this suit.

And the claimants averments in paragraphs 13, 14 15, and 25 of her statement of Fact and paragraphs 15- 29 of the claimant’s witness statement on oath. I find that the claimants cause of action are two-fold. Firstly, the failure or refusal of the defendants to absorb her back into service after she obtained her PhD Certification in 2013, which I find arose on the 23^rd October 2013 when she official wrote for re-absorption and secondly, the failure of refusal of the defendant to transfer her service which arose from her letter of 16^th September 2016. Which means that in respect of reliefs (a), (c), (d), and (f) the cause of action stem from non re absorption arose on the 23^rd October 2013 and with respect to reliefs (b) and d, I find the cause of action being failure/refusal to transfer the claimant arose on the 16^th September 2016.
Now by simple mathematics the time lag between 23^rd October 2013 and 11^th May 2017 on the one hand between and 16^th September 2016 and 11^th May 2017 on the other hand stands at three (3) Years Seven (7) Months and eighteen (i18) Days after the cause of action arose in respect of reliefs b and e I find that the claim was instituted Seven (7) Months and twenty -five (25) Days after the cause of action arose.

Considering that the law requires that an action against the defendants be instituted three months after the cause of action I find that the claimants case is caught up by section 2.A o f the Public Officers Protection Act LFN 2004.

The claimant has argued that this matter comes within three exception;-
Continuous injury,
Where the Public officer Acted in bad faith or malice or without legal justification
Breach of fair hearing.

Now case law has defined continuous injury to mean continuation of the Act the created the injury and not the injury itself. See BELLO & ORS. v. NIGERIA CUSTOMS SERVICE BOARD (2015) 53 NLLR (PT. 179) 343 NIC @ 351 Where it was held that ‘the definition of the phrase “continuance of the injury” by case law authorities means continuance of the “act which caused the injury” and not the injury itself”. Okafor v. A.G, Anambra State (2001) FWLR (PT. 58) 1127 @ 1146 D-G; CARREY v. BERMONDSEY METROPOLITAN BOUROUGH COUNCIL (1903) 675 P. 447; 20 TLR 2; AMAMIWE v. THE LOCAL SCHOOL BOARD (1971) 2 NMLR 57 @ 58; OBIEFUNA v. OKOYE (1961) ALL NLR 357.

Bearing in mind that a “. Cause of action is accordingly the aggregate of facts giving rise to or upon which an enforceable claim is anchored” and by considering that in law where a claim is for periodic monetary payments such as salary and allowances etc., such a claim pre supposes entitlement and the cause of actions arises upon denial of payment when and as it fell due as per Learned author Ikechukwu D. Uko Esq. in his book Preliminary Objections to Jurisdiction ©2013 2^nd Edition Published by Law Digest Publishing Co. Lagos at page 586 stated See LUTH & MB Vs. ADEWOLE [1996] 7 NWLR (Pt. 463) 701
In the instant case the cause of the action of the claimant is the action or inaction of the defendants in refusing or failing to re absorb the claimant and the defendants refusal, failure of neglect to transfer her services to the National University Commission, these acts or omissions occurred when the claimant applied for the action as was denied. This is a singular act of a non recurring nature and hence cannot be a continuing injury, it is the effect of the omission or denial by the defendants that is contuing I find and not the actual denial.
It is accordingly my finding and holding that the continuing injury or damage exception to the Public Officers Protection Act is not applicable in the instant case as to warrant this case not being statute-barred. The instant case was filed outside of the limitation period allowed by section 2(a) of the Public Officers Protection Act 2004.

The claimant also argued that in this case the defendants acted in bad faith or malice or without legal justification. In OLOTU v. POWER HOLDING COMPANY OF NIGERIA (2014) 42 NLLR (PT. 132) 529 @ 534

It was held by this court that where “an action against a public officer or public institution or 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. See RAHAMANIYYA UNITED (NIG.) LTD V. MINISTRY FOR FEDERAL CAPITAL TERRITORY & ORS [2009] 43 WRN 124 CA AT PAGE 146, applying 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 V. ADEFARASIN [2002] 14 WRN 57 and AREMO II V. ADEKANYE [2004] 42 WRN 1 SC. And see also JOSHUA MNENGE V. NIGERIAN ARMY UNREPORTED SUIT NO. NICN/IB/22/2012, the ruling of which was delivered on December 18, 2012, this Court dealing with an argument similar to the instant applicant held thus:
It is in the attempt to show that the defendant acted mala fide that the claimant posited that the defendant did not act pursuant to the law. This argument turns the principle over its head as it is the very fact of the claimant complaining that his dismissal was not in accordance with the law that brought him to Court in the first place. If the claimant’s counsel turns round to say that for this reason, the defendant cannot enjoy the benefit of the Public Officers Protection Act 2004, then there is some warped reasoning on his part in that regard.

See also the unreported cases of SUIT NO. NICN/LA/07/2016MRS AGUBUZOR NKECHI Vs. CENTRE FOR BLACK AND AFRICAN ARTS AND CIVILIZATION &6 ORS Delivered December 7, 2016, SUIT NO. NICN/AB/04/2013 DR ADEGOKE E. ADEGBITE Vs. FEDERAL UNIVERSITY OF AGRICULTURE ABEOKUTA &3 ORS Delivered November 18, 2014, SUIT NO. NIC/LA/214/2011 MR. DOSUMU OLOTO Vs. POWER HOLDING COMPANY OF NIGERIA Delivered February 13, 2014 and this court in SUIT NO. NICN/LA/312/2013 MR. IYEDE ONOME FESTUS & 1 ORS Vs. MANAGEMENT BOARD OF DELTA STATE UNIVERSITY TEACHING HOSPITAL& 1 ORS Delivered July 3, 2014 held that “the argument of the instant applicant is that the respondents did not have the requisite statutory and constitutional power to retire him; as such they acted mala fide, and outside of the colour of their offices. The illogicality of the applicant’s argument is that it is that very fact of acting mala fide and outside of the colour of their offices that brought the applicant to this Court, and which the limitation laws dictate that he comes within 3 months.

In Unreported SUIT NO. NICN/LA/149/2014 AUPCTRE & ANOR Vs. NATIONAL THEATRE OF NIGERIA & ORS Delivered May 18, 2016 This Court held that “a claimant who suffered abuse of office and bad faith cannot just sit at home and wake up when he wants outside of the limitation period, come to court and then say because of the abuse of office and bad faith, the defendant cannot raise the defence of the limitation law. The cause of action itself is the abuse of office and bad faith. Litigating it must be within the time frame allowed by the law. Any other thing would be indulging an indolent litigant, the very thing that the limitation law is set to guard against”.
I do not see any merit in the argument of the claimant in this regard. her argument in that regard is accordingly discountenanced. I find that the claimant’s case is caught up by the public Officers protection Act.
The claimants third claim to exception is that of a breach of her right to fair hearing, in that she was never queried as to why she was absent from duty, arguing that her right to fair hearing is constitutional and anything affecting her right to articulate her grievance in court is unconstitutional.

The dictum of the Muhammed Bello CJN Supreme court in OGUDU Vs STATE [1994] 9 NWLR (Pt.366) 1 is most apposite at this juncture.

‘It appears to me that upon careful examination of the fundamental rights in chapter IV of the Constitution, they may be classified into two categories for the purpose of their observance and their enforcement. Firstly they are the rights that must be observed whenever the occasion of their observation has arisen. Endorsing the submission of Mr. Agbakoba, they are intrinsic to the occasion and cannot be divorced from the occasion. They are generally procedural rights and are embodiment of fair trial in courts and tribunals of a democratic society, thus the right to fair trial and the right of an accused to defend himself under section 33 of the constitution are intrinsic to the trial and failure to observe such rights is a valid ground of appeal. The second category of fundamental rights comprises those rights that are enforceable by the High Court under Section 42 of the Constitution. Because the Constitution expressly confers original jurisdiction for their enforcement on the High Courts, this court (referring to the Supreme Court) has no jurisdiction as a court of first instance over them.’

Section 254C(1)(d) CFRN as amended provides that the National Industrial Court shall have jurisdiction…….
d) relating to or connected with any dispute over the interpretation and application of the provisions of chapter IV of this constitution as it relates to any employment, labour, industrial relation, trade unionism, employer association or any other matter which the court has jurisdiction to hear and determine;

As far as the claimants claim relates to a labour dispute and the alleged breach of fundamental right occurred is related or connected to an employment matter or is procedural and an intrinsic part of a substantive claim this court can hear it as an ingredient of a labour issue and as long as the suit is clothes the court with jurisdiction See UNREPORTED SUIT NO NIC/ ABJ/296/2012 GEOFERY VS SETRACO NIGERIA LTS. & ORS delivered on 4^th March 2013.Cf. and UNREPORTED NIC/ABJ/32/2012 ANICHA VS. NIGERIAN ARMY 7 ORS delivered on 2^nd July 2012. See also the unreported SUIT NO: NICN/IB/46/2012 MRS. R. A. AWOFADEJO Vs. THE POSTMASTER GENERAL OF THE FEDERATION & 2ORS delivered on 18^th January 2014

What all that means is that seeing as the claimants right to fair hearing in this suit is an integral part of her claim under employment. It is a question of observation. i.e. did the defendant observe, or accord the claimant, this right in dealing with the claimant. It is only in respect of the question of enforcement of fundamental human rights such as the right to hearing that the provisions of the limitation acts or laws are inapplicable. In order to ventilate her denial of a right of hearing within this labour suit the claimant is required to bring her action within the limitation period, which she has not done. I find no merit in the claimant submission. I find and hold that that the claimants case does not fall within any of the three exceptions, none of the three exceptions argued by the claimant’s counsel, I find, can avail the claimant for the reasons given above

The defendants Notice of Preliminary has merit and succeeds

The instant case was filed outside of the limitation period allowed by section 2(a) of the Public Officers Protection Act and so is statute-barred; and I so find and hold. This court accordingly has no jurisdiction over it; and I so hold. Unreported SUIT NO. NICN/LA/149/2014 AUPCTRE & ANOR Vs. NATIONAL THEATRE OF NIGERIA & ORS Delivered MAY 18, 2016 This case is statute-barred and is accordingly dismissed.
This is how I would have resolved the Preliminary Objection