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The Claimant initiated this action on 1st February, 2012 vide a Complaint dated the same state wherein the Claimant claimed against the respondent the following reliefs: (i). A DECLARATION that the continuous verbal suspension of the claimant from the service of the defendant from 10th April 2001 till date is contrary to the customs/civil service rules, the Constitution, unlawful, illegal and therefore null and void. (ii). AN ORDER of court directing the defendant to produce the claimant’s file, recall him back to his duty post and his appropriate rank of Assistant Superintendent of Customs effective 10th April 2011 restored back to him+. (iii). AN ORDER of court directing the defendant to pay the claimants (sic) all is (sic) salaries, allowances or other emoluments from April 2001 till date of recall and or reinstatement. (iv). AN ORDER of perpetual injunction restraining the defendant, its agents, servants or privies from harassing, intimidating or terminating the claimant’s appointment except in accordance with due customs/civil service rules, and with due regard to due process of law. (v). General damages for breach of employment contract and living wages. (vi). AND FOR SUCH order or further orders a the Honourable Court may deem fit to make in the circumstance. The filed Complaint was accompanied with Statement of Claim, List of Documents to be relied upon, Acceptance of Offer of Appointment, Customs Service ID, Enrolment of Judgment, Letter of Reminder, List of Witnesses etc. On its part, the respondent on 23rd October, 2012 filed a Motion on Notice dated the same date seeking for extension of time within which to file and serve its Conditional Memorandum of Appearance, Statement of Defence, Witness Statement on Oath and List Witnesses, and for an order deeming the aforesaid processes and attached Exhibits, that is, Exhibits NCS 1, NCS 2, NCS 3 & NCS 4 as properly filed and served on the claimant. The motion on notice was brought pursuant to Order 25 Rule 4 of the NIC Rules, 2007 and under the Inherent Jurisdiction of the Court. The Motion was supported by an affidavit of 10 paragraphs deposed to by one Ajayi, A.A. and Assistant Superintendent of Customs. Filed along with the motion on notice was a 2-page written address. On the same 23rd October, 2012, a Notice of Preliminary Objection [hereinafter referred to as Preliminary Objection] dated the same date was filed by the respondent wherein the respondent/applicant prayed the Court to strike out or dismiss this suit. The Preliminary Objection is based on the following 3 grounds: 1. That this suit is statute barred by virtue of the provision of Section 2(a) of the Public Officers Protection Act Cap 379 LFN 2004. 2. That there is no Pre-action Notice served on the Nigeria Customs Service Board as required by S6 (2) of the Nigeria Customs Service Board Act Cap 100 LFN 2004. 3. The Claimant failed to obtain the leave of this Honourable Court before serving the Writ of Summons on the Defendant, contrary to the provision of the Sheriff and Civil Processes Act Cap S6 Laws of the Federation of Nigeria. The respondent/applicant also filed a written address dated 23rd October, 2012 along with its Preliminary Objection. By way of response to the Preliminary Objection filed by the respondent/applicant, the claimant on the 21st of November, 2012 filed a Reply to Notice of Preliminary Objection [hereinafter referred to as Claimant’s Reply]. The Claimant’s Reply is dated 21st November, 2012. It is pertinent to note that the respondent/applicant took further step after the claimant filed his reply to the notice of preliminary objection. Realizing that it was out of the time permitted by the rules of this Court to file its reply on point of law, the respondent/applicant on 12th December, 2012 filed a motion on notice on the same date. In its motion on notice dated 12th December, 2012 and brought under Order 25 rule 4 of the NIC Rules 2007, the respondent/applicant sought an order extending the time within which to file and serve its reply on point of law attached thereto as Exhibit NCS 5 and for a further order deeming the said Exhibit NCS 5 as properly filed and served. The motion on notice is supported by an affidavit of eight (8) paragraphs deposed to by one Ajayi, A.A., an Assistant Superintendent of Customs. The respondent/applicant’s motion on notice dated 23rd October, 2012 came up for hearing on 16th January, 2013. On the said date, Mr. S.O. Olaleye of counsel held the brief of Mohammed Adamu for the claimant. The respondent was represented by Mrs. M.L. Halilu. To start with, counsel for the respondent/applicant got the nod of the Court to move his application for extension of time and a deeming order. The application was not opposed by counsel for the claimant. In the result, the reply on point of law was deemed properly filed and served. Arguing his preliminary objection, counsel for the respondent/applicant submitted that the preliminary objection dated 23rd October, 2012 was brought pursuant to Section 2(a) of the Public Officers Protection Act Cap 379 LFN 2004 [hereinafter referred to as POPA 2004] and Section 6(2) of the Nigeria Customs Service Act Cap 100 LFN 2004 [hereinafter referred to as NCA 2004]. Counsel repeated the grounds upon which the application was predicated and which I have earlier reproduced. Counsel sought the permission of the Court to adopt the applicant’s written address dated 23rd October, 2012 and reply on point of lawas its arguments in respect of the preliminary objection. Let me now review the said written address filed by the respondent/applicant. In the written address, counsel for the respondent/applicant formulated 3 issues for determination as follows: “(a) Whether this action of the Claimant against the Defendant/Applicant is statute barred by virtue of the provision of Section 2 (a) of the Public Officers Protection Act LFN Cap 379 of 2004. (b) Whether it is mandatory for the Claimant/Respondent to serve the Defendant/Applicant’s (sic) with Pre-action notice before the institution of this Suit. (c) Whether it is mandatory for the Claimant to obtain the leave of this Honourable Court for service of his writ of summons on the Defendant outside the jurisdiction of this court.” On Issue (a), counsel submitted that Section 2(a) of POPA 2004 provides that: Where any action, prosecution or other proceeding is commenced against any persons for any act done in pursuance of any Act or Law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Act, Law, or authority, the following 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. Citing the case of RAYLEIGH INDUSTRIES (NIG) LTD VS NWAIWU (1994) 4 NWLR (Pt. 341) 760 at 771-772, counsel submitted that the period of limitation is determined by looking at the writ of summons and the statement of claim alleging the time the cause of action arose and by comparing the date the cause of action arose with the date on the writ of summons. Counsel submitted that the claimant in his statement of claim is claiming salaries, allowances and other emoluments from the 10th of April, 2001 which is the time the claimant alleged that he was verbally suspended from the service of the respondent/applicant. Still referring to the statement of claim of the claimant, counsel submitted that the claimant was suspended in April 2001 (referred to paragraph 12 of the statement of claim); that criminal action was instituted against the claimant in 2002 (paragraph 20 of the statement of claim); and that the criminal action was struck out on 14th January, 2003 (as per paragraph 22 of the statement of claim). In view of these facts, counsel submitted that the claimant’s cause of action arose on 14th January, 2003 and that the claimant ought to have filed this action on or before 15th April, 2003. Counsel for the respondent cited the case of FADARE & ORS VS AG OYO STATE (1982) NSCC 52 at 60 where it was held that: “time begins to run when there is in existence, a person who can sue and another who can be sued and when all facts have happened which are material to be proved to entitle the plaintiff to succeed.” On how to determine when an action is statute barred, counsel referred to the case of ETHIOPIAN AIRLINES VS AFRIBANK NIGERIA PLC (2007) ALL FWLR 185 at 186paragraphs 1 & 2, where the Court of Appeal held that: “A cause of action is said to be statute barred if in respect of its proceedings, cannot be brought because the period of limitation is determine by looking at the writ of summons and statement of claim alleging when the wrong was committed which gave the plaintiff the cause of action and by comparing that date with the date on which the writ of summons was filed. This can be done without taking oral evidence from the witness. If the time on the writ is beyond the period allowed by the Limitation Law, the action is statute barred.” The Court further held that: “Time of limitation begins to run from the moment the cause of action arises....... for the purpose of instituting an action, time begins to run from the date the cause of action accrues.” It was therefore the contention of counsel that where an action is statute barred, a plaintiff who might have had a cause of action loses the right to enforce it by judicial process because the period of limitation laid down by law has passed. On this proposition, counsel cited the case of N.P.A. Vs LOTUS PLASTICS LTD & ANR (2006) ALL FWLR (Pt. 297) 1023 at 1045 Paras B-F. On the strength of this, counsel urged the Court to hold that the respondent/applicant is protected by Section 2(a) of POPA 2004, and that the claimant’s claim is caught by the said provision. On Issue (b) which enquires whether the claimant/respondent is obliged to serve a month’s pre-notice on the respondent/applicant before commencing this suit as required by Section 6(2) of NCA 2004, counsel submitted that Section 6(2) NCA 2004 provides that: “No suit shall be commenced against the Board before the expiration of a period of one month of intention to commence the suit shall have been served on the Board by the intending plaintiff or his authorized agent and the notice shall clearly and explicitly state, (a) Cause of action; (b) Particulars of claim; (c) The name and place of abode of the intending plaintiff; and (d) The relief which he claims.” It was submitted on behalf of the respondent/applicant that the word “shall” used in the section shows that it is obligatory that a pre-action notice be served on the Nigeria Customs Board and not the Comptroller General of Customs. And that the period of notice is one month. Counsel contended that the letters attached to the statement of claim dated 5th May, 2005, 23rd September, 2005 and 29th November, 2005 did not meet the condition precedent to the commencement of this suit against the Customs Service Board for the following reasons: (1) They were addressed to the Comptroller General of Customs and not the Board; (2) The letters did not state the particulars of claim; (3) The place of abode of the defendants was not stated; and (4) The reliefs sought were not stated as prescribed by the NCA 2004. According to counsel, since compliance with Section 6(2) NCA 2004 is mandatory, the failure of the claimant/respondent in the instance case to comply he argued, amounted to a fundamental error which means that no action can be brought against the Customs Service. Counsel contended that pre-action notice is both procedural and constitutional. On this point, counsel cited the case of N.N.P.C. VS TIJANI (2007) ALL FWLR 129 ratio 3 where the Court held that: “Where statutory notice is required before the commencement of any action, failure to give that notice renders such action incompetent......... This pre-action notice is a condition precedent to adjudication by the court of any action brought against the corporation. Failure to give such notice therefore renders whatever action so instituted incompetent and liable to be struck out.” Counsel also cited the following cases: GBADAMOSI V. NIGERIA RAILWAY CORPORATION (2007) ALL FWLR 880 ratio a; MOBIL NIGERIA V. LAGOS STATE ENVIRONMENT & ORS (12 NSCQR 263; CHIEF EZE V. DR. OKECHUKWU & ORS 12 NSCQR 163; AGF V. SODE (1990) 1 NWLR (Pt. 128) 500; DIN V. AGF (1998) 4 NWLR (Pt. 87) 147; and MADUKOLU V. NKEMDILIM 91962) S.C. ratio 6. On the effect of the failure to serve pre-action notice before commencement of action, counsel referred to the case of NNPC V. TIJANI (supra) 133, ratio 4 where it was held that: “Generally, omission to serve required notice in a deserving case would be fatal to the suit....failure to serve same renders the action ineffective and liable to struck out instantly....... The notice is not only statutory; it is mandatory. It cannot be ignored.” The following cases were also cited by counsel to the respondent/applicant: 1. OBETA V. OKPE (1996) 9 NWLR (Pt. 573) 40; 2. ATTORNEY GENERAL OF THE FEDERATION V. GUARDIAN NEWSPAPERS LTD (1999) 9 NWLR (Pt. 618) 87; 3. ATOLAGBE V. AWUNI (1997) 9 NWLR (Pt. 522) 110 at 133; and 4. AMADI V. NNPC (2000) FWLR (Pt. 674) 85. Counsel urged the Court to hold that this suit was commenced in default of pre-action notice which renders the suit incompetent and robs the Court of jurisdiction to hear and determine same. While arguing Issue (c), counsel referred the Court to the endorsement on the writ of summons of the claimant which reads: “To Nigeria Customs Service Board of Apapa 1 Command, Apapa, Lagos State and also WuzeZone 3, FCT Abuja in the Lagos Judicial Division of the National Industrial Court of Nigeria”. It was the submission of counsel that this endorsement was intended to confuse the Registry of this Court into believing that the correct address for service is Apapa Lagos, whereas, the address of Nigeria Customs Service is Wuse Zone 3, FCT, Abuja. Counsel cited the provision of Order 4 Rule 5 of the NIC Rules 2007 which states that: “Where the originating process does not state (sic) an address for service, it shall not be accepted and where such address is illusory, fictitious or misleading the Court on the application of the defendant may set the process aside.” Counsel also referred to Order 7 Rule 10 which provides that: “Where any person out of jurisdiction of the Court is a necessary or proper party in a matter before the Court and it is necessary to serve that person with the originating process or other document relating to the matter, the Court may allow service of the process or such other document out of jurisdiction.” Counsel for the applicant referred to the case of DREXEL ENERGY & NATURAL RESOURCES LTD & 2 ORS V. TRANS INTERNATIONAL BANK AND 2 ORS (2009) All FWLR 1823 at 1828-1829, para 7 where according to counsel, the plaintiff failed to obtain leave of court to issue and serve the writ of summons outside the jurisdiction of the court, the writ of summons was held to be invalid. In that case, the court also held that Section 97 of the Sheriffs and Civil Processes Act, 2004 is clear and mandatory and that failure to do so cannot be mere irregularity but a fundamental defect which renders such writ of summons incompetent. Counsel argued that matters relating to service of writ of summons or originating summons outside the jurisdiction of a State High Court (of which the National Industrial Court is of coordinate jurisdiction) is within the exclusive legislative List of the National Assembly and the Federal Government. Counsel cited the case of NWABUEZE V.OKOYE (1988) 4 NWLR (Pt. 91) 664 and submitted that the law is that where a defendant is outside the judicial division of the National Industrial Court, the claimant must apply for and obtain the leave of the Court in order to serve the writ of summons outside the jurisdiction of the Court. And that the leave of this Court was never sought to serve the respondent/applicant who resides in Abuja, outside the jurisdiction of this Court sitting in Lagos. He urged the Court to answer Issue (c) in the negative. Finally, counsel urged this Court to hold that the issuance and service of the originating process on the applicant outside jurisdiction without prior leave renders this suit incompetent, invalid, null and void and that same should be dismissed for want of jurisdiction. On his part, counsel for the claimant/respondent informed the Court that the claimant on 21st November, 2012 filed a written address dated the same day. He adopted the written address as arguments in response to the preliminary objection. In his written address dated 21-11-2012, the claimant at paragraph 1.8 expressly adopted the issues formulated by the respondent/applicant for the determination of this application. On Issue 1, counsel for the claimant/respondent submitted that this Court has jurisdiction to hear this suit and cited the case of MINI LODGE LTD V. NGEI (2010)10 WRN 58 at 93-94 lines 35 per Adekeye JSC where the Court stated that a court has jurisdiction where: (a) The court is properly constituted as regard members and qualifications of members on the bench. Counsel referred to Section 254E of the 1999 Constitution as amended; (b) The subject matter of the case is within the jurisdiction of the court and there is no feature in the case which prevents the court from exercising its jurisdiction. On this, counsel referred to Section 254C (1)(k) of the 1999 Constitution as amended and Section 7 of the National Industrial Court Act 2006; (c) The case comes by due process of law and upon the fulfillment of any condition precedent to the exercise of jurisdiction. Counsel submitted that this suit is not caught up by Section 2(a) of POPA 2004 and further submitted that the cases of IBRAHIM V. JSC (supra) and ETHIOPIAN AIRLINES V. AFRIBANK NIGERIA PLC relied upon by the applicant herein were misapplied. Counsel contended that the case of the claimant is based on the issue of suspension which is on-going and not a final dismissal. He also submitted that the issue of salary and pension contributions which is the cause of action is monthly since he is due to receive payments every month. Counsel submitted that by the doctrine of continuation of damage or lying, limitation law does not apply to this case. Counsel referred to unreported Supreme Court case (with a promise to provide a certified true copy to the Court) of C.B.N. V. AMAO & ORS [Suit No. SC.168/2007] where it was held that: “..that the action is not statute barred as pensions are of current native as a result of which the cause of action relating thereto arises afresh every month when the defendant pays pension.” Counsel further relied on the case of C.B.N. V. AMAO & ORS supra where the Supreme Court also held that: “it is rather unfortunate that the efforts of the Federal Government to put smiles on the faces of pensioners, so as to alleviate their sufferings the defendant having regards to harsh economic realities of this country, have been almost frustrated by argument on legal technicalities while people continue to suffer year in year out.” Counsel urged the Court to hold that the cause of action occurs every month contrary to the misconception of the respondent/applicant. The case of IJALEL V. AG LEVENTIS & CO LTD (1961) ALL NLR 9New Series) 792 at 794 was cited. Counsel submitted that a close look at paragraphs 29, 37, & 47 of the statement of claim and paragraphs 5, 6, 11 & 12 of the statement of defence will reveal that the claimant’s injury is continuing. On the issue of exceptions to a general rule in a statute, counsel cited the case of AREMO 11 V. ADEJANYE (2004) 13 NWLR (Pt. 891) 593-594 where the Supreme Court held that: “Admittedly, legal principles are not always inflexible. Sometimes they admit of certain exceptions. Thus where there has been a continuance of damage is caused.......for example, if the owner of mines works there, and causes damage to the surface more than six years of action of a fresh subsidence causing damage occurs without any fresh working by the owner, an action in respect of fresh injury gives a fresh cause of action.” Counsel also referred to page 178 of a book titled, Understanding the Concept of Jurisdiction in the Nigerian Legal System, 2008 by Obande F. Ogbuniya. Counsel submitted that since the claimant/respondent has neither been served any suspension letter nor was the suspension of the claimant announced to the general public through the television or newspaper, the applicant cannot be heard to be asserting that this suit is caught up by statute of limitation. He submitted that Exhibit 7 which is the suspension letter was never served on any person. It was also the contention of the claimant/respondent’s counsel that Exhibit 8 is suspicious as it does not indicate the “section” where the claimant works. Flowing from this, counsel submitted that a public officer loses the protection accorded by Section 2(a) of POPA 2004 whenever he goes outside the scope of his authority in the execution of his public duties. He cited the case of UNILORIN V. ADENIRAN (2007) 6 NWLR (Pt. 1031) 498 and also the case of IBRAHIM V. JSC, KADUNA STATE supra where the Supreme Court held that: “It can be said that section 2(a) of the public officers protection law gives full protection or cover to all public officers or person engaged in the execution of public duties who at all material times acted within the confines of their public duties. Once they step outside the bounds of their public authority and are acting outside the colour of their office or employment or outside their statutory or constitutional duty, they automatically loose (sic) protection of the law. In other words, a public officer can be sued outside the limitation period of 3 months if at all times material to the commission of the act complained of, he was acting outside the colour of his office or outside his statutory or constitutional duty. Where, however, he acted within the colour of his office; he can only loose (sic) protection of the limitation law if he is sued (sic) within three months.” In this respect, counsel also cited the case of DANGANA V. GOVERNOR OF KWARA STATE (2011) 50 WRN 95-96 lines 30-40. Counsel urged the Court to hold that this suit is not caught up by the statute of limitation and resolve the first issue in favour of the claimant/respondent. On the second issue formulated for determination, counsel submitted that claimant/respondent has served the respondent/applicant with pre-action notice before commencing this suit. In this respect, counsel referred to Exhibits OCE 4 dated 5th May, 2005, OCE 5 dated 23rd September, 2005 and OCE 6 dated 29th November, 2005. He submitted that the respondent/applicant was given a-30-day notice of intention to go to court. Further on the issue of pre-action notice, counsel submitted that non-service of pre-action notice cannot rob the Court of jurisdiction but would rather delay the hearing of the matter until the claimant complies by issuing the necessary notice. According to the counsel for the claimant/respondent, pre-action notice is not the same as originating processes that are integral parts of the proceedings. The case of ETI-OSA LOCAL GOVT V. JEGEDE (2007) 10 NWLR (Pt. 1043) 555 Paras. E-F was cited where the Court held that non-compliance with the requirement to serve a pre-action notice does not abrogate the right of a plaintiff to approach the Court, and that such non-compliance only gives the defendant the right to insist on such notice. The case of NNOYE V. ANYICHIE (2005) 3 MJSC Paras. E-G was also cited. Counsel therefore urged the Court to resolve Issue (b) as formulated by the applicant and adopted by the claimant in favour of the claimant. On Issue (c), counsel for the claimant submitted that Order 7 Rule 10 of the NIC Rules 2007 does not require leave of the Court to be obtained before service of the originating process on a respondent outside the jurisdiction of the Court. Counsel urged the Court to dismiss the preliminary objection in its entirety and set the matter down for hearing on the merit. Let me now consider the reply on point of law dated 12th December, 2012 and filed the same date by the applicant. In the main, the reply on point of law responds to the claimant’s contention that the injury he suffers is a continuous one. Counsel cited the case of OYETOKI V. NIGERIA POSTAL SERVICE (2010) ALL FWLR (Pt. 504) 1572 at 1574-1575 where the court held that: “A cause of action accrues on the date when a breach or any step taken would warrant a person who is adversely affected by the act of another to seek redress in court. In the instant case, the cause of action of plaintiff arose when he asked to stay at home and his salary was stopped.” It was submitted on behalf of the applicant that the cause of action in the instant case arose on 10th April, 2001 when the claimant was suspended and his salary stopped. Counsel argued that the issue of stoppage of salary is not a continuous injury as claimed by the claimant but a consequential damage. Counsel for the respondent/applicant further referred to the case of OYETOKI V. NIGERIA POSTAL SERVICE supra where it was held that: “A cause of action consists of two elements: (a) The wrongful act of the Defendant which gives the plaintiff his cause of complaint. (b) The consequential damage.” Counsel argued that this action is statute barred because the claims of the claimant do not constitute continuous injury or damage and do not fall within the exceptions to the statute of limitation. Learned counsel for the applicant referred to the case of EGBE V. ALHAJI 91990) 1 NWLR (PT. 128) sc 546 ratio 11 at 579 para B where it was held that: “where it is shown that a cause of action arose out of an act done by a public officers in pursuance or execution of his lawful duty, then malice is irrelevant for the purpose of his protection by law.” Finally, on what the court should do when the issue of limitation of action is raised, counsel relied on the case of NIGERIAN AIRPORTS AUTHORITY V. ABRAHAM KAWAGAJI (2012) 28 N.L.L.R. 194 ratio 6 where it was held that: “what the court is to determine at that stage is not the liability or otherwise of the Defendant but whether or not such Suit itself is competent and maintainable against the Defendant.” I have carefully read and considered the processes and documents filed in this matter, issues formulated for determination, arguments/submissions of counsel and the various authorities cited by counsel. It is apposite for me to state that the issues formulated by the claimant are sufficient for the determination of this application. What is more, the issues as formulated by the respondent/applicant were expressly adopted by the claimant/respondent. It is now well ingrained in our jurisprudence that the question of jurisdiction being very fundamental must be first determined by a court whenever its jurisdiction is challenged. This is because where a court has no jurisdiction to determine a subject matter, the proceedings thereto are a nullity no matter how well conducted. On this proposition, I rely on the cases of Madukolu v. Nkemdilim (1962) 1 ANLR (Pt. 1) 587; Obiuweubi v. Central Bank of Nigeria (2011) 7 NWLR (Pt. 1247) 465 and A.G. Lagos State v. Dosunmu (1989) 3 NWLR (Pt. 111) 552 or in (1989) 6 SCNJ 134. It is now necessary to consider the Issues formulated for determination by the parties in this case starting with Issue (a). The enquiry is whether the claimant’s action is statute barred by virtue of Section 2(a) of POPA 2004 as argued by counsel for the respondent/applicant? Put in another way, is the respondent/applicant herein legally justifiable in invoking Section 2(a) POPA 2004 as a shield or bar against the claims of the claimant/respondent against it? I have reproduced the provision of Section 2(a) POPA in an earlier portion of this ruling, it is therefore not incumbent on me to quote the provision again. It suffices to state that both sides to this dispute are in agreement that the provision protects any public officer from any proceeding or action in respect of anything done in execution or intended execution of any public duty where such proceeding or action was not commenced within 3 months from the time the alleged act or omission. See the case of IBRAHIM V. JSC OF KADUNA STATE supra. The rationale for the provision of section 2(a) POPA 2004 was clearly articulated by the Supreme Court in the case of Sanni v. Okene L.G. (2005) 14 NWLR (Pt. 944) 60 at 74 Paras C-D thus: The main purpose of the limitation period is to protect a defendant from the injustice of having to face a stale claim. Put in another way a claim which he never expected to have to deal with. For example, if a claim is brought a long time after the event in question, there is a strong likelihood that evidence which was available earlier may have been lost, and the memories of witnesses may have faded. Whether or not an action is statute barred can be determined simply by looking at the writ of summons and the statement of claim to ascertain when the act or omission giving rise to the cause of action occurred and when the action was filed as indicated on writ of summons. The case of MBONU V. NIGERIAN MINING CORPORATION (2006) 12 NWLR (Pt. 998) 659 at 686 is an authority of this point. See also the case of RAYLEIGH INDUSTRIES (NIG) LTD VS NWAIWU supra From the above perspective, it is now appropriate for me to determine when the cause of action in this matter arose. At paragraphs 29 and particularly, 49 (i) & (ii) of the statement of claims, the claimant avers that he was suspended from work in April 2001. Paragraph 2 of Exhibit OCE 5 dated 23-09-2005 also affirms this position. Similarly, the respondent/applicant in his submission did agree that the suspension of the claimant/respondent occurred in April 2001. Two matters are worth considering with respect to the suspension of the claimant by the defendant. First, the claimant/respondent claimed that the letter of suspension was not served on him. The respondent/applicant at paragraph 6 admitted that the letter of suspension could not be served on the claimant/respondent. However, at paragraphs 7 & 8 of the statement of defence, the respondent/applicant averred that the suspension of the claimant was published in the Monthly Order Magazine of the Custom Service in the Number 6-8/2001 of June/July/August Issue. A copy was pleaded and marked “Document 6.” The claimant/respondent has described “Document 6” as suspicious because it does not indicate the section in which the claimant works. It is my considered view that this expression of reservation by the claimant without more is not sufficient to impeach the relevance of the document to the question of whether the claimant was suspended in April 2001. It follows that the notice of the suspension of the claimant as published in the Monthly Order Magazine of the Customs Service Number 6-8/2001 of June/July/August was good notice to the claimant, his colleagues and general public. What this means is that the claimant’s cause of action arose in June 2001 when notice of his suspension was published. A more germane issue raised by the claimant’s counsel is that the claimant’s suspension is ongoing, that is, some sort of continuing injury or damage. He argued that that the issue of his salary and contributory pension scheme are monthly issues which means that his cause of action accrues from month to month. He therefore argued that this suit is not caught up by Section 2(a) of POPA 2004 and that the Court should so hold. He relied on the unreported Supreme Court decision in C.B.N. V. AMAO & ORS and IJALEL V. A.G. LEVENTIS & CO. LTD supra. However, the applicant’s counsel in his reply on point of law countered this position. He submitted that the suspension was the act that gave rise to the claimant’s cause of action while the stoppage of salary was a mere consequential damage flowing from the suspension. On this proposition, the counsel for the respondent/applicant cited the case of OYETOKI V. NIGERIA POSTAL SERVICE supra. Let me point out that the certified true copy of the case of C.B.N. V. AMAO & ORS supra was not made available to this Court by counsel to the claimant/respondent as promised. I should also state that the case of IJALEL V. A.G. LEVENTIS & CO. LTD. supra is unhelpful to the case of the claimant. On the other hand, the case of OYETOKI V. NIGERIA POSTAL SERVICE established the principle that: “A cause of action accrues on the date when a breach or any step taken would warrant a person who is adversely affected by the act of another to seek redress in court. In the instant case, the cause of action of plaintiff arose when he was asked to stay at home and his salary was stopped.” [Emphasis added]. The Court in the above case also held that a cause of action consists of two elements: a. the wrongful act of the defendant which gives the plaintiff his cause of complaint. b. the consequential damage. The suspension of an employee has been held by the Court of Appeal not to be a continuing act when for the purpose of determining whether or not the Public Officers Protection Act applies. That was in the case of NNAMDI AZIKWE UNIVERSITY, AWKA V. PROF. C. C. NWEKE (2008) All FWLR (Pt. 428) 343 at pp. 348-349, Paras. H-A; D-F; p. 350, Paras. B-E. On the strength of this authorities, I hold that the suspension of the claimant with effect from June 2001 was the action of the defendant which gave rise to the claimant’s cause of action. The stoppage of salary is merely consequential. I am not persuaded by the position of the claimant that his suspension was ongoing and amounts to continuing injury. Having held that the cause of action arose in April 2001, it is important to state that this action was commenced on 1st February, 2012. This was more than 10 years after the cause of action arose. In other words, the claimant instituted this action against the respondent/applicant after the 3 months period envisaged by S. 2(a) POPA 2004. Let me add that there is no dispute on the fact that the respondent/applicant herein is a public officer within the contemplation of section 2(a) of POPA 2004. In IBRAHIM V JUDICIAL SERVICE COMMITTEE, KADUNA STATE supra, the Supreme Court held that: “It is beyond dispute that the word “person” when used in a legal parlance, such as in a legislation or statute, connotes both a “natural person”, that is to say, a “human being” and an “artificial person” such as a corporation, sole or public bodies, corporate or incorporate.” In the case of FORESTRY RESEARCH INSTITUTE OF NIGERIA V. GOLD supra, the Supreme Court held that where an action against a public officer falls outside the prescribed three months window of opportunity for bringing such an action, the effect is that: “The said section has removed the right of action, the right of enforcement, the right of judicial relief against the respondent becomes unenforceable.” In the light of the foregoing analysis and the authorities of OYETOKI V. NIGERIA POSTAL SERVICE supra; IBRAHIM V. JUDICIAL SERVICE COMMITTEE, KADUNA STATE supra; and FORESTRY RESEARCH INSTITUTE OF NIGERIA V. GOLD supra, I hold that this action is statute barred against the respondent/applicant herein. Issue (a) formulated by the respondent/applicant is hereby answered in the affirmative. Let me now turn to consider the second issue formulated by the respondent/applicant herein. The contention of the respondent was that this action is incompetent because the claimant did not serve the pre-action notice on the respondent as required by section 6(2) NCA 2004. In his response, the claimant argued that the said pre-action notice had been served and made reference to Exhibits OCE 4 dated 5th May, 2005; OCE 5 dated 23rd September, 2005 and OCE 6 dated 29th November, 2005 by which the claimant gave the respondent 30 days notice of his intention to commence legal proceedings. On the other hand, the claimant conceded that even if the required notice had not been served, it would not be fatal to his case, as it would merely keep his right to seek judicial relief in abeyance until there is compliance with S. 6(2) NCA 2004. However, counsel for the respondent argued that the Exhibits referred to above do not meet the requirements of the notice required under S. 6(2) NCA 2004. I have carefully considered the arguments in respect of the application of S. 6(2) NCA 2004. In particular, I have closely of perused the said exhibits. I have no difficulty in concluding that the said exhibits did not meet the requirements of a notice envisaged under S. 6(2) NCA 2004. For instance, none of the exhibits contained the particulars of claim just as the place of abode of the plaintiff was not indicated as required by the provision. It is also instructive that the cause of action was not specifically stated to be the suspension of the claimant by the respondent. For all of the above reasons, I have come to the conclusion that the claimant herein did not serve the required pre-action notice. In MADUKOLU V. NKEMDILIM supra, the Supreme Court stated that for a court to have jurisdiction over a matter, such a case must have come before it by due process of law and upon the fulfillment of any condition precedent to the commencement of the action. Also in the case of NIGERCARE DEVELOPMENT CO. LTD V. ADAMAWA STATE WATER BOARD & 3 ORS (2008) All FWLR (Pt. 422) 1052 at 1071, Paras. B-C; E-F, the Supreme Court held that: “Where there is non-compliance with a statute that is shown to be mandatory, the suit and/or proceedings is/are a nullity howsoever well conducted.” Also worthy of reference in this regards is the decision of the Court of Appeal in the case of N.N.P.C. V. TIJANI (2007) All FWLR (Pt. 344) 129 at pp. 140-141, Paras. H-B, where the Court held as follows: “Generally, omission to serve required notice in a deserving case would be fatal to the suit. The court will be right to decline the exercise of jurisdiction as it will be futile to exercise same where there is none. Where the mandatory notice was not given as required by section 12(2) of the NNPC Act, the proper order to make is one striking out the suit. The notice is not only statutory, it is mandatory. It cannot be ignored. Failure to serve same renders the action ineffective and liable to be struck out.” I consequently answer Issue (b) formulated by the respondent/applicant in the affirmative. Having held that this action is statute barred as against the respondent/applicant in view of section 2(a) POPA 2004, and having also held that the claimant has failed to serve the mandatory pre-action notice required by section 6(2) NCA 2004, there is no compelling need for me to determine Issue (c) formulated for determination by the respondent. That will be a mere academic exercise. In the final analysis, and taken into cognizance the authorities that I have already referred to above, I hold that this action is incompetent against the respondent/applicant. It is accordingly struck out. See the case of Owners of the MV “Arabella” v. N.A.I.C. (2008) 11 NWLR (Pt. 1097) 183 at 219, paras. C-F. ……………………………………………………………… Hon. Justice B. A. Adejumo, OFR President, National Industrial Court of Nigeria