In the Supreme Court

JUDGMENT

(Delivered by Amina Adamu Augie, JSC)
The Appellant was a Professor in the Department of Psychology, and a Member of the Senate of the Respondent. On 16/9/2004, the Vice Chancellor received a Report that the unpublished result of a Diploma Course was found in the possession of a Diploma male student, who alleged that the Appellant had given it to him.
On 21/9/2004, the University Management Committee UMC met and decided to suspend the Appellant and recommend that a Committee be set up to try the Appellant and two other lecturers. By a letter dated 22/9/2004, the Appellant was then suspended for "Extortion and illegal release of un-approvedresults of PSY 10 1.
The Senate set up an Investigation Panel called the Senate Panel on Three Cases, which recommended his termination to the Senate, and the Senate in its Meeting of 26/1/2005, adopted the Report of the said Panel, and recommended to the Council of the Respondent to implement the recommendations of the said Panel.
On 9/2/2005, Appellant filed an action against Respondent at the Federal High Court, Enugu, trial Court wherein he claimed -
(a) A Declaration that the Report of the Senate Panel on Three Cases and adopted by the 107th meeting of the Senate of the Defendant held on Wednesday, 26/1/2005, as it affects the Plaintiff is null and void and of no effect.
(b) A Declaration that setting up a Senate Panel or any domestic or administrative committee by the Defendant to try the Plaintiff is pre-mature.
(c) An Order setting aside the suspension of the Plaintiff as a staff of the Defendant.
(d) An Order restraining the Defendant from suspending, continuing to suspend or terminating the Appointment of the Plaintiff.
(e) An Order restraining the Defendant from implementing the Report of the Senate Panel on Three Cases adopted by the 107th meeting of the Senate of the Defendant held on Wednesday, 26/1/2005, as it affects the Plaintiff.
(f) An Order restoring the Plaintiff to his full salary and entitlements as Professor in the Department of Psychology of the Defendant.
(g) An Order paying to the Plaintiff all the arrears of his unpaid salaries and other entitlements and allowances.
The Respondent filed a Statement of Defence, wherein it denied each and every allegation of fact, and further averred as follows -

31. Defendant shall urge the Hon. Court to determine as a preliminary issue that based on the pleadings that the Plaintiff's Suit is statute barred and is premature as contained in this Pleadings.
32. Defendant shall at the hearing urge this Hon. Court to dismiss this Suit in its entirety with punitive costs as Plaintiff's suit is statute barred and his claims are devoid of merit.

The Respondent thereafter filed a Notice of Preliminary Objection on 15/3/2005, wherein it prayed the trial Court for the following -
(1) An Order dismissing this Suit as the Honourable Court lacks the jurisdiction to determine same as the Plaintiff's action is statute barred by virtue of the provisions of Section 2 of the Public Officers Protection Act, Cap. 379 of the Law of the Federation of Nigeria 1990 as the Plaintiff averred that he was suspended from his office on 22/9/2014 and he commenced this suit against the Defendant, which is a public officer on 9/2/2005, more than three months after his suspension.
(2) An order striking out this Suit on the ground that the Plaintiff's action is premature in that he has not exhausted the remedies open to him by virtue of Section 16 of Nnamdi Azikiwe University, Act No. 34 of 1992, which is a condition precedent, before he should institute an action in Court against the Defendant.
The Respondent later withdrew the second arm of the objection, and in his Ruling on the first arm of the said Objection delivered on 5/10/2005, the learned trial Judge, Lewis-Allagoa, J., held that-
After the suspension, the Senate Panel on 3 Cases was set up and a recommendation was made for the termination of the appointment of the Plaintiff. Also looking at the action filed by the Plaintiff - - it is clear that the Plaintiff's complaint encompasses all the events of suspension, setting up of the Senate Panel and the recommendation of the Panel - - I agree with Plaintiff's counsel that the cause of action was continuous and it finally enured when the Senate Panel on 3 Cases recommended for the termination of the appointment of the Plaintiff and the adoption of that Report on 26/1/2005. Once that Report recommending for the termination of the appointment of the Plaintiff was adopted, the cause of action enured. A simple calculation between that date and the 9/2/2005 when this Suit was filed, tells me that the Plaintiff was within 3 months and I so hold. The Plaintiff is, therefore, not caught by Section 2(a) of Public Officers Protection Act.
Dissatisfied, the Respondent filed an appeal at the Court below. In its Judgment allowing the Appeal and setting aside the Ruling of the trial Court in its entirety, the Court below held as follows -
From the facts of this case it is clear that the Respondent was suspended on 22/9/2004 while he commenced his Suit on 9/2/2005 a period of over 4 months after the cause of action. This is in clear violation of the Public Officers Protection Act. There is no basis for the argument of the learned counsel for the Respondent that the suspension was a continuing act, which was not caught by the Public Officers Protection Act. The suspension started on a definite date, which was the date of the cause of action for all intents and purposes. The Respondent had a duty to ensure that he acted timeously if he was to hold the appellant to account for his suspension. See the case of Ambode V. Ministry of internal Affairs (2004) 4 NWLR (Pt. 894) 506 in which the Court of Appeal held that the cause of action accrued on the 31st of August, 1999 when the letter of retirement was served on the Appellant and not on the 16th of May, 2000 when his effort to negotiate with his employer became fruitless.
The Appellant has appealed to this Court with a Notice of Appeal containing three Grounds of Appeal, and he formulated one Issue for Determination therefrom in his Brief of Argument, which was adopted by the Respondent in its own Brief of Argument; that is -
Whether the present case is caught by the provision of Section 2(A) of the Public Officers Protection Act, Cap. 379 Laws of the Federation, 1990, (sic) ought the Court below have dismissed the action instead of striking it out even if the provision of Section 2(A) Public Officers Protection Act supra applies to the case, and was the Court below also justified in pronouncing on the issue of the interlocutory order of injunction made by the trial Judge after having already declared that the action was statute barred and incompetent.

The Appellant started with an argument on the issue of bad faith; that it is settled that the Public Officers Protection Act is designed to protect public officers, who act in good faith, and not those that have acted in utmost bad faith; and the Court below ought to have given him the chance to lead evidence to prove the existence of bad faith on the part of the Respondent as alleged in his pleadings because once he does that successfully, then the defence availed the Respondent by the Public Officers Protection Act fizzles out automatically; and that the Court below was thus wrong in holding that the Public Officers Protection Act availed the Respondent and in further striking out the Appellant's claim for being incompetent.
But the Respondent argued that the Appellant did make the above submission at the trial Court but the trial Court did not make any finding on same; that the Appellant did not cross-appeal or file a Respondent's Notice at the Court below on the failure of the trial Court to decide on this submission, therefore, he cannot be heard to raise this issue herein as the Court below did not decide same.
Furthermore, that Ground one of the Grounds of Appeal filed in this Court does not contain the issue of acting in bad faith as the Court below did not decide on same; that it is only mentioned in paragraph (iv) of the particulars to the said Ground; and that since it was not decided upon by the Court below, it cannot arise in this Appeal - Ikweki V. Ebele (2005) 11 NWLR (PL 936) 424, Atoyebi V. Government of Oyo State (1994) NWLR (PL 344) 290.

The Appellant, however, countered in his Reply Brief that the Respondent's submissions are not correct because the said issue "was very specifically and clearly raised and decided on at the Court below". He further argued as follows in his Reply Brief-
In the first place at page 306 of the Record, the Court below had stated as follows "The learned counsel for the Respondent also filed a brief and formulated 2 issues for determination as follows:-
(i) Whether the trial court had the Jurisdiction to hear the suit as constituted and was the Suit statute barred under Section 2(a) of the Public Officers Protection Act Cap. 379 Laws of the Federation of Nigeria 1990.."continuing the Court had further held per Ogebe, JCA (as he then was) -
"I will adopt the 2 issues formulated by the Respondent's counsel for the determination of this appeal as the 2 issues adequately sum up the substance of the controversy in the appeal."
It is self-evident from the above that the issue was the main issue in contention at the Court below and in its Judgment at page 307 the same Court below has observed as follows- "In reply the learned counsel for the Respondent submitted that the action was not statute barred because the suspension of the respondent from office was a continuing act and was done in bad faith." It had then held finally as follows " Consequently, I allow this appeal and set aside the ruling of the trial court in its entirety. In its place uphold the preliminary objection of the applicant in the court below and dismiss the respondent's claim for being statute barred". Clearly - - the main point that was taken and considered by the Court below was whether the Public Officers Protection Act still applied because of the allegation of malice - - Ground 1 of the Appellant's Notice and Grounds of Appeal clearly covers the issue and the arguments of the Respondent that paragraphs 3.01 to 3.04 at pages 4-5 of the Appellant's brief should be struck out as incompetent does not hold water in the least and I urge the Court to discontinuance the same.
In my view, it is the Appellant's argument that does not hold water. Clearly, the above statements referred to, are general comments, which say nothing and decide nothing about the issue of bad faith.

As the Respondent pointed out, in Ikweki V. Ebele (supra), Oguntade, JSC, repeated the very apt observation of Iguh, JSC, in Atoyebi V. Government of Oyo State (supra), as follows -
An Appeal presupposes the existence of some decision, which is appealed against on a given point or points. Where - there is no complaint in respect of a decision that has arisen from a Judgment appealed against; such a decision may not form the basis of an issue for determination by an appellate Court. The appellate jurisdiction of this Court inter alia is to review the decisions and/or Judgments of the Court of Appeal. If, therefore, an issue neither arose nor called for the determination of the Court of Appeal, which - - did not consider the issue. It seems to me that such an issue may not form the basis of an Appeal to the Supreme Court and a purported appeal to this Court on such an issue will be incompetent and may be struck out.
In effect, once the Court below has decided an issue, this Court's appellate jurisdiction is limited to seeing whether or not that issue was rightly decided. It has NO jurisdiction over issues that were not decided by the Court below; such issues are not even such as can be raised by a Respondent's Notice - see Uhunwangho V. Okojie (1989) 5 NWLR (PL 122) 471 SC, wherein this Court held -
There was nothing on the Record to show that there was indeed a third party Notice to contend that the Judgment of the Court of Appeal be affirmed on other grounds. I agree too that even if there was such a Notice, the Court could not have taken it when the matter was not considered by the Court of Appeal. If the 2nd Respondent felt aggrieved about the failure of the Court of Appeal to consider this matter, he should have cross-appealed. There was no cross-appeal. The matter of personal service was raised in the Respondent's Ground 2 of Grounds of Appeal to the Court of Appeal but that Court based its decision on the procedural one of whether Section 63 applied at all. Per Nnamani, JSC

In this case, Appellant's counsel submitted at the trial Court that -
Since my learned friend has raised the issue of competence of this Suit especially paragraph 2 of his Motion. A perfect answer is an averment in the pleadings that the action of the Plaintiff was actuated by malice, whether proved at this stage or not. May i draw the Court's attention to paragraph 6 of the Plaintiff's Reply to the S/C dated 10/6/05, where the Plaintiff averred that the Defendant acted in bad faith. The authority for this proposition is the case of Nwankwere V. Adewunmi 1966, SCNLR at page 60. Also Offobochie V. Ogoja Local Government 2001 16 NWLR (Pt. 739) page 458.
The trial Court merely stated under In Reply - On Point of Law to the Preliminary Objection - "O Ugolo submitted that the case of Nwankwere V. Adewunmi (supra) does not apply neither does the case of Offobubochie V. Ogoja LG The trial Court made no other reference to the issue of bad faith, and made no findings thereon.
The Appellant did not cross-appeal against the failure of the trial Court to determine the issue of bad faith, and the Court below made no findings on the issue. In the Ground One of his Grounds of Appeal filed in this Court, the Appellant complains as follows -
The learned Justices of the Court of Appeal erred in law when they held "From the facts of this case it is clear that the Respondent was suspended on 22/9/2004 while he commenced his Suit on 9/2/2005 a period of over 4 months after the cause of action. This is in clear violation of the Public Officers Protection Act. There is no basis for the argument - - that the suspension was a continuing act, which was not caught by the Public Officers Protection Act. The suspension started on a definite date, which was the date of the cause of action for all intents and purposes. The Respondent had a duty to ensure that he acted timeously if he was to hold the Appellant to account for his suspension.

The Particulars of Error No (iv) expatiates on Ground One thus
That the Court below had not considered nor applied the cases of Offorboche VS Ogoja Local Government, 2001, 16 NWLR PL 739 page 458 and Nwankwere VS Adewunmi, 1966, SCNLR page 66, which both decided that where bad faith or malice is alleged against a public officer in the pedormance of the public duty then the protection afforded him by the Public Officers Protection Act ceases to avail him.
To recap the point made by the Respondent, the trial Court did not
decide on the said issue of bad faith, so the issue did not come up at the Court below as the Appellant, who was Respondent, did not cross-appeal against it neither did he file a Respondent's Notice; and since there was no decision on the issue by the Court below, it is incompetent and the Appellant's argument must be struck out.
I agree; a ground of appeal must be couched in such a way as to attack the Judgment of the Court on the issue decided by it. It is settled that an Appellant will not be allowed to raise on appeal a question that was not raised or tried or considered by the trial Court - see Koya V. UBA (1997) 1 NWLR (PL 481) 251, Bankole V. Pelu (1991) 8 NWLR (PL 211) 523. It is also settled that a Party can raise a fresh issue in this Court but he must seek the leave of Court to do so - Owie V. Ighiwi (2005) 5 NWLR (PL 917) 184 SC.
In this case, the issue of bad faith was not raised or tried or considered by the trial Court; the Court below did not decide on it and the Appellant did not cross-appeal against its failure to do so; the Appellant did not seek the leave of Court to raise the issue, and it goes without saying that the Appellant's arguments thereon are out of place in this Appeal, and it is hereby discountenanced.
Be that as it may, the Appellant argued that the Court below singled out his claim in paragraph 15(c) of his Statement of Claim for an Order setting aside his suspension, and based its decision thereon to dismiss the entire action as being statute barred; and that the question is, even if the said paragraph was statute barred, does that justify the Court below dismissing the other paragraphs even as they were clearly not statute barred? He answered no!
He contends that after having so held, the Court below ought not to have gone further to decide on the propriety or otherwise of the order of interlocutory injunction made by the trial Court as it is trite that once an action is incompetent a Court can only strike the action out and no more. He referred to the decision of this Court in Peter Obi V. INEC delivered on 13/7/2007 no citation, and urged this Court to hold that the finding of the Court below is null, void and of no effect - Adesola V. Abidoye (1999) 10-12 SC 189.
The Respondent canvassed its own arguments on the issues of the said paragraph 15 (c); whether the Suit should have been struck out and not dismissed; and whether the Court below was right to go further to consider the Order for interlocutory injunction. The Appellant also countered these arguments in his Reply Brief.
Apparently, the Appellant focused his attention on everything else except the germane question of whether the Court below was right to hold that the said Suit was statute barred in the first place -the key issue that will resolve this Appeal one way or the other.

Now, where a Statute provides for the institution of an action within a prescribed time, the times so prescribed also dictate the times when the Court shall have jurisdiction over the said action. Thus, even though Courts are enjoined to do substantial justice and to eschew technicalities, when it comes down to the issue of limitation of time, a Court is bound by what the Statute stipulates - see Ajayi V. Military Administrator of Ondo State (1997) 5 NWLR
(PL 504) 235at254 SC, where this Court, per Eso, JSC, said -
The issue of whether or not an action has been statute-barred is one touching on jurisdiction for once an action has been found to be statute-barred, although a Plaintiff may still have his cause of action, his right of action, that is, his legal right to prosecute that action has been taken away by Statute. In that circumstance, no Court has the jurisdiction to entertain his action.
At center stage in this Appeal is the Public Officers Protection Act, which is a limitation Statute, and the substance of its Section 2(a) is that an action against a person for any act done in pursuance of neglect or failure complained of. The said Section 2 (a) provides -
Where any action, prosecution or 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 failure in the execution of any such Act, Law, duty or authority, the following provisions shall have effect
(a) Limitation of Action - 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 after the ceasing thereof.

To determine whether an action is statute-barred, the Court looks at the Plaintiff's Writ of Summons and Statement of Claim alleging when the wrong was committed by the Defendant. In other words, when the cause of action accrued, and situate with that when the Writ of Summons was filed in Court. If the date of filing is beyond that permitted by the Statute, then the action is statute-barred.
The law of limitation of action recognizes some exceptions, and so, where there has been a continuance of damage or injury, a fresh cause of action arises from time to time; and as often as the damage or injury is caused - see Aremo II V. Adekanye (2004) 13 NWLR (PL 891) 572 SC and Adimora V. Ajufo (1988) 3 NWLR (Pt. 80) 1 at 17 SC, where Oputa, JSC, explained this as follows -
In dealing with limitation of actions, one of the most fundamental questions to answer is: When did the cause of action accrue? The crucial question is also the most difficult, as the answer will depend on the surrounding circumstances of each particular case. But maybe a collateral question has to be answered first - what is meant by cause of action? In its best definition, it consists of every fact, which it would be necessary for the Plaintiff to prove, if traversed, in order to support his right to Judgment - - When these facts have occurred and provided there are in existence a competent Plaintiff and a competent Defendant, a cause of action is said to accrue to the Plaintiff because he can then prosecute an action effectively. Thus, the accrual of a cause of action is the event whereby a cause of action becomes complete so that the aggrieved party can begin and maintain his cause of action.
In this case, the two Courts below gave different answers to the question of when the cause of action accrued, and the issue now is which of the Courts provided the right answers to the question.
In the trial Court's view, the cause of action was continuous and it finally enured when the said Senate Panel on Three cases recommended for the termination of the Appellant's appointment, and its Report was adopted on 26/1/2005. The Court below found that the trial Court was wrong because in its view, the Appellant was suspended on 22/9/2004, and time began to run from then.
Without any hesitation, I will say that the trial Court is right and the Court below, wrong; because there is a huge difference between suspension from duty and termination of an appointment.
The word "suspension" means a temporary privation or deprivation, cessation or stoppage of or from the privileges and rights of a person. It carries or conveys a temporary or transient disciplinary procedure, which keeps away the victim or the person disciplined from his regular occupation or calling, either for a fixed or terminal period or indefinitely. The disciplinary procedure gives the initiator of the discipline a period to make up his mind as to what should be done to the person facing the discipline - see Unical V. Esiaga (1997) 5 NWLR (PL 502) 719, relied on by this Court in Longe V. F.B.N. Plc. (2010) 6 NWLR (PL 1189) 1 SC.
In other words, suspension is usually a prelude to dismissal from an employment. It is neither a termination of the contract of employment nor a dismissal of the employee. It merely operates to suspend the contract rather than terminate the contractual obligations of the Parties to each other - Longe V. FBN (supra).
In Longe V. FBN (supra), this Court also relied on Boston Sea Fishing Co. v. Ansell (1886-90) All ER 65, where it was said -
Mr. Anseli was dismissed, and I think his dismissal from the position, which he held, must be taken to date from the meeting on October, and not from the day in September when he was suspended by the Board, because suspension is very different from dismissal. When a man is suspended from the office he holds, it is merely a direction that - "so long as he holds the office and until he is legally dismissed, he must not do anything in the discharge of the duties, which under your office, you ought to do towards your employer".
Oguntade, JSC, further explained in Longe V. FBN (supra) that-
An employer suspending his employee may impose terms of the suspension but in a general sense, suspension of an employee from work only means the suspension of the employee from performance of the ordinary duties assigned to him by virtue of his office.
Termination, on the other hand, is a different kettle of fish. If the
employee does not file his action within the three months after his appointment was terminated, any Suit filed after is statute-barred -see Yare V. N.S.W. & l.C. (2013) 12 NWLR (PL 1367) 173 SC, wherein this Court, per Galadima, JSC, made it clear, as follows -
The Public Officers Protection Act is a Statute of Limitation. It is exact as to time frame. It provides for three months; not a day longer than three months. It is quite clear that the Appellant's appointment was terminated on 9/1/1999. Upon being relieved of his appointment, the Appellant had a choice to quickly enforce his right by going to the Court to ventilate his grievances. He elected to sleep away; he woke up late to allege that he was waiting the outcome of his appeal before the Senior Staff Committee -- The provisions of the Act are clear and unambiguous. The effect of the limitation law is that any action that is statute-barred removes the right of action, the right of enforcement and the right to judicial relief, as from 9/1/1999, when the Appellant's employment was determined.

In this case, the letter of suspension dated 22/9/2004, and written by the Respondent's Acting Registrar informed the Appellant that -
Following security reports regarding extortion of money from students and illegal release of un-approved Diploma Programme results of PSY 101 leveled against your person, the University Management at its 5&h Meeting held on 21/9/2004, decided to suspend you, and you are hereby suspended from duty for three months in the first instance. During the period of suspension, you will be placed on half salary while further investigations into the case will be handled by a Committee to be set up by the Senate of the University. You are required to hand over all University work materials in your possession to your Head of Department.
The letter speaks for itself, and shows the essence of suspension to the letter. He was suspended for an initial three months during which time further investigations were expected to be carried out, and the Respondent would decide what should be done to him.
The Appellant was also asked to hand over "work materials" in his possession, which is in line with the principle of suspension, because he is still a member of staff of the Respondent, however, his employment was kept in abeyance until it decided what to do.
The Respondent decided to terminate his appointment after the Committee it had set up carried out the further investigations, and recommended same to the Senate, which adopted its Report, and recommended to the Respondent's Council to implement it. There were, therefore, two distinct stages in the whole scenario.
He was suspended from duty on 22/9/2004. and the Senate sanctioned the said termination of his appointment, on 26/1/2005.
His suspension was merely a directive not to do anything in the discharge of his duties as a Professor in the said Department, until the Respondent made up its mind as to what should be done.
The Respondent later decided to terminate his appointment. Termination is defined as a final step in the progressive employee discipline process where his or her employment with the employer is permanently severed - businessdictionary.com. Termination of employment is also defined in Black's Law Dictionary, 9th Ed., as the complete severance of an employer-employee relationship".
Obviously, the Appellant had no reason to run to Court when he was suspended, but had reason to when his employment was being threatened with "complete severance" the termination.
The trial Court was right that time began to run when the said Senate Panel recommended that his appointment be terminated, and the Senate in its Meeting of 26/1/2005, adopted its Report.
Amina Adamu #ugie, Justice, Supreme Court
Thus, this Appeal succeeds and is allowed. The decision of the Court below is set aside, and the decision of the trial Court in its Ruling of 5/10/2005 is restored. I make no Order as to costs.

JUDGMENT
(DELIVERED BY MARY UKAEGO PETER-ODILI, JSC
I agree with the judgment and reasonings just delivered by my learned brother, Amina Adamu Augie JSC and to show my support, I shall make some remarks.

This is an appeal against the Judgment of the Court of Appeal, Enugu Division delivered on 12th day of June 2007 in which the appellate court dismissed the plaintiff's/appellant's suit on the ground that it was statute barred.
FACTS BRIEFLY STATED:
The plaintiff/appellant who was an employee of the defendant/respondent and had risen to the position of Professor of Psychology in that university was aggrieved with certain actions and decisions of the defendant/respondent as they related to him, among others, the Senate of the defendant/respondent had taken some decisions that appellant felt were inimical to his interest as an employee of the respondent.
The appellant had at paragraph 15 of his statement of claim sought the following reliefs of the court, viz: ''Paragraph 15:
(a) A declaration that the Report of the Senate Panel on three cases and adopted by the 107th meeting of the senate of the defendant held on Wednesday 26 January 2005 as is affects the plaintiff is null and void and of no effect.
(b) A declaration that setting up Senate Panel or any domestic or administration committee by the defendant to try the plaintiff is pre-mature.
(c) An order setting aside the suspension of the plaintiff as a staff of the defendant.
(d) An order restraining the defendant from suspending, continuing to suspend or terminating the appointment of the plaintiff.
(e) An order restraining the defendant from implementing the Report of the Senate Panel on three cases adopted by the 107th meeting of the Senate of the defendant held on Wednesday 26th January 2005 as it affects the plaintiff.
(f) An order restoring the plaintiff to his full salary and entitlements as professor in the Department of Psychology of the defendant.
(g) An order paying to the plaintiff all the arrears of his unpaid salaries and other entitlements and allowances.
The respondent had through her counsel filed her statement of defence dated 26/5/2005 and urged the Court to dismiss the suit as being statute barred since as she put it, the Public Officers Protection Act Cap379 Laws of the Federation 1990 availed the respondent and offered her protection since the suit was filed on 9/2/2005 while the appellant had been suspended as an employee of the respondent since 22/9/2004 more than 3 months before the said suit was filed.

On the 24th February, 2005 plaintiff filed a motion on Notice for interlocutory injunction and prayed for an order similar to those in the statement of claim viz; setting aside his suspension, an order restraining the defendant from suspending, continuing to suspend or terminating his

appointment and for an order restoring him to his full salary and entitlements and for an order paying to him all the arrears of his unpaid salaries and other entitlements and allowances.
The defendant on 15/3/2005 filed a Notice of Preliminary Objection to have the suit dismissed on the ground that it was statute barred by virtue of the provisions of Section 2 (a) the Public Officers Protection Act as plaintiff's suit was filed more than 3 months after his suspension.
The Notice of Preliminary Objection and the Motion for Injunction were argued and in its ruling the trial court dismissed the Preliminary Objection and granted all the prayers in the Motion for Injunction. The defendant, dissatisfied with the decision appealed to the Court of Appeal which dismissed the plaintiff's suit and now aggrieved the plaintiff/respondent now appellant has appealed to the Supreme Court.
Chuma Oguejiofor Esq. of counsel for the appellant on the 27/2/2017 date of hearing adopted his brief filed on the 17th day of September 2007 in which he raised a single issue which is as follows:-
Whether the present case is caught by the provision of Section 2 (a) of the Public Officers Protection Act, Cap.379 Laws of the Federation 1990, ought the court below have dismissed the action instead of striking it out even if the provisions of Section2 (a) of the Public Officers Protection Act supra applies to the case, and was the court below also justified in pronouncing on the issue of the interlocutory order of injunction made by the trial judge after having already declared that the action was statute barred and incompetent. O. C Ugolo Esq., learned counsel for the respondent adopted its brief of argument filed on the 14/12/2007 and adopted the single issue of the appellant.
The appellant had equally adopted his reply brief filed on 29/1/2008.
SOLE ISSUE:
This raises the question on the application of the Public Officers' Protection Act Section 2 (A) and if yes, the justification of the Court of Appeal to go on to pronounce on the interlocutory injunction after declaring the action statute barred and incompetent.
Arguing on his position, learned counsel for the appellant contended that the Public Officers' Protection Act, Section 2 A does not apply as the defendant acted in bad faith. He cited Nwankwere v Adewunmi (1966) 1 All NLR 122 at 133-134; Lagos Citv Council v Ogunbivi (1969) 1 All NLR 297 at 299.
Also submitted for the appellant is that the court below having held the appellant's suit as statute barred ought not to have gone further to decide on the propriety or otherwise of the order of interlocutory injunction made by the trial court as once an action is incompetent the court lacks jurisdiction to entertain the same as it can only strike out the action and no more. He cited Peter Obi v Independent National Electoral Commission & 6 Ors SC.123/2007 delivered on

13/7/2007 per Aderemi JSC; Adesola v Abidove (1999) 10 -12 SC 189 at 133.
Responding, learned counsel for the respondent said the learned trial judge did not decide on the issue of the Public Officers Protection Act not applying and the Court of Appeal did not rule on it either and since the appellant did not cross-appeal at the court below cannot bring up the matter at this stage. That the Court of Appeal was right in its decision and the appellant cannot complain. He cited Ibrahim v Judicial service Committee, Kaduna State (1998) 4 NWLR (Pt.584) 1 at 47; Texaco Panama Inc. v Shell PDC Ltd (2002) 5 NWLR (Pt.759)209; Aniaboro v Sea Trucks Nia. Ltd (1995) 6 NWLR (Pt.399) 35 at 60.
In reply on points of law, learned counsel for the appellant contended that the respondent's arguments were from wrong premises as the issue of the Public Officers Protection Act was an issue in the court below which court ruled on it. Also that striking out of a suit is the proper order where the court finds the action statute barred.
The Public Officers Protection Act, Cap.379 Laws of the Federation 1990 Section 2(a) thereof, at the base of the suit which has culminated into this appeal before the Supreme Court stipulates thus:-
"2(a)the action, prosecution or proceeding shall not lie or be instituted unless it is commenced within three months next after act, reflect or default complained of, or in case of continuance of damage or injury, within three months next after the ceasing thereof".

The appellant as plaintiff had claimed among other things from the court of trial that the court set aside the suspension of the plaintiff as a staff of the defendant/respondent. In the Preliminary Objection raised by the defendant, he anchored on the protection of Section 2 (a) of the Public Officers Protection Act stating that the action of the plaintiff more than the three months allowed by the Act for a reaction after the suspension. The court of first instance did not uphold the Preliminary Objection and went on to grant these prayers of the plaintiff in the interlocutory application. On appeal, the court below held thus:-
"From the facts of this case, it is clear that the respondent was suspended on the 22nd of September 2004 while he commenced his suit on the 9th of February 2005 a period of over 4 months after the cause of action. This is in clear violation of the Public Officers Protection Act., on the second issue it is trite law that courts are enjoined not to decide substantive suit at an interlocutory application stage.It is beyond dispute that the learned trial Judge in granting the reliefs for the interlocutory application had decided the reliefs in the main case. There was nothing left for him to decide in the substantive suit. This was clearly irregular and cannot be allowed to stand. Consequently, I allow this appeal and set aside the ruling of the trial court in its entirety. In its place I up hold the preliminary

objection of the applicant in the court below and dismiss the respondent's claim for being statute barred".
From the facts available to the court of trial at the inception of the action, what had occurred was the suspension of the duties of the plaintiff/now appellant which was an ongoing action not completed and so the activation of the

Public Officers Protection Act Section 2 (a) precisely cannot enure. It is only if the appellant had had his office terminated that the Act can be ignited with the three months maximum period for the commencement of the suit then applying. The process on ground at the time the appellant ran to court was such that the resort to the Act was premature. Therefore, all the authorities in relation to the Public Officers Protection Act do not apply and cannot to be of assistance to the respondent.
From the foregoing and the fuller reasons in the lead judgment the action was alive and well with the necessary jurisdiction in the trial court to enter into the merits of the matter before it. The Court of Appeal clearly came from a misguided premise.
This appeal has merit and I allow it as I abide with the consequential orders made. .

JUDGMENT
(Delivered bv Olu Ariwoola, JSC)

I had the preview of the draft of the lead judgment just delivered by my learned brother, AUGIE, JSC. I am in agreement with the reasoning that led to the conclusion that the appeal has merit and should be allowed. It is accordingly allowed by me.

Appeal allowed.

I abide by the consequential orders made.

JUDGMENT
(Delivered by I. T. Muhammad. JSC)

I have had the advantage of reading in draft, the judgment just delivered by my learned brother, Augie, JSC. I adopt his process of reasoning and the conclusion arrived at. I adopt orders made in the judgment including one on costs.

Appearances:

C. Chima Oguejiofor for appellant with him; I. Aroh; A. T. Nwaka and O.
S. Udenwagu (Miss).

O. C. Ugolo, Esq. for the respondent.