RULING. On 14/8/17, the Applicant took out an Originating Summons seeking for: 1. A declaration that the removal of the Claimant from the services of the 2nd Respondent with effect from 1st March 2016 by the 1st Respondent’s letter of 1st Match 2016 withdrawing the 1st Respondent letter of approval of 15th December 2015 is wrongful, null and void and of no effect in that the process for the transfer and absorbment of the claimant into the main stream of the Federal Civil Service had long commenced prior to the circular of the 1st defendant of 22nd October 2013 on which the refusal of transfer of the claimant was based. 2. A declaration that the claimant retired as the chief confidential Secretary, salary grade level 14 from the service of the Ministry of Niger Delta Affairs in September 2015. 3. An order of Court enforcing the payment of salaries and allowances of the claimant by the 2nd Respondent from 1st day of September 2011 till the claimant retired in September of 2015. 4. An order of the Honourable Court declaring the acts of the 1st Respondent to the claimant by its letter reference No. Fc 151823/87 of 1st March 2016 withdrawing the letter of regularisation of transfer of service reference No. FC 151823/75 dated 15th December 2015 when the claimant is supposed to have retired from service in September 2015 as irregular, null and void. 5. An order directing the Defendants to pay the claimant forthwith all arrears of his salaries, emoluments and/or entitlements from the 1st day of September 2011 when his salary was stopped by the Delta State Civil Service Commission until the time he retired from service in September 2015. 6. An order of court mandating the Defendants to regularize and put everything in place to enable the claimant to be entitled to pension benefits, retirement benefits and every other thing he is entitled to as a retired Federal Civil Servant of the Federal Republic of Nigeria. 7. And such further order(s) and reliefs as the Honoutrable Court may deem fit to make in the circumstances of this suit. Upon being served with the Originating Summons commencing this suit, the 1st Defendant/Respondent, vide notice of preliminary objection dated 7/8/17 and filed on 8/11/17, is praying for an order dismissing this suit for lack of jurisdiction as the suit is statute barred and wrongly commenced by way of originating summons. In this ruling the Claimant/Applicant will be referred to as the Respondent. While the Defendant/applicant will be referred to as the Applicant. The applicant filed a written address along with the notice of preliminary objection. V. V. Omade, Esq; Counsel for the Applicant while advancing oral argument in support of the notice of preliminary objection adopted the written address as his argument. In the written address two issues were formulated for determination, to wit: 1. ‘‘Whether the Claimant’s suit is statute barred as to oust the jurisdiction of this Honourable Court. 2. ‘‘Whether the Claimant’s claims and/or reliefs can be properly determined under an action commenced by originating summons. ISSUE ONE: WHETHER THE CLAIMANT’S SUIT IS STATUTE-BARRED AS TO OUST THE JURISDICTION OF THIS HONOURABLE COURT. In arguing issue one counsel submitted that the respondent action is statute barred by virtue of section 2(a) of the Public Officers (Protection) Act, for having been instituted outside the three months period allowed for bringing action against public officers. It is submitted in determining statute bar, the court is to examine the claim before the court to see if the time pleaded in the originating processes is beyond the period allowed by the limitation law, the action is statute barred. The Claimant herein commenced the instant action via Originating Summons dated and filed on 14th August, 2017. The grouse of the Claimant is that his salary was stopped by Delta State Civil Service after his secondment to Ministry of Niger Delta Affairs and that it is the letter of withdrawal dated 1st March 2016 by the Federal Civil Service Commission that had truncated his absorption into the Federal Civil Service to enable him receive his entitlements. The Claimant stated in his affidavit that he ought to have retired in September, 2015 but his salary was stopped in 2011. It is therefore clear from the foregoing that the claimant’s cause of action arose either in 2011 or 2016, when his salary was stopped or his letter was withdrawn. It is obvious that a period of over three months has elapsed from either 2011 or 2016 to August, 2017 when the Claimant commenced this action. This is contrary to the spirit and intendment of the provisions of Section 2 of Public Officer Officers Protection Act (CAP. P.41) LFN 2004. The instant complaint by the Claimant is therefore statute-barred. It is the submission of counsel that the Public Officer’s Protection Act (POPA) is applicable to statutory bodies and offices such as the 1st Defendant herein. In support of this assertion counsel relied on the case of IBRAHIM V. JUDICIAL SERVICE COMMITTEE KADUNA STATE (1998) 14 NWLR (PT. 584) PAGE 1 @ PG 38 PARAS. D-F and the case of NPA V. AJOBI (2006) 13 NWLR (PT.998) 477 and Section 18 (1) of the Interpretation Act. It is also submitted that where a statute like the Public Officers Protection Act prescribes a period for the doing of an act or institution of a proceedings, such act or proceedings shall not be brought after the time prescribed by the Statute has expired. Any action commenced after the expiration of the limitation period is statute barred. On this counsel relied on UMUKORO V. NPA (1997)4 NWLR PT 502 PG 656@ 667 PARAS B-D F.C.E. PANKSHIN V. PUSMUT (2008) 12 NWLR PT 1101 PG 405 @ 419 PARAS A-E, OSUN STATE GOVT. V. DALAMI NIG LTD (2007) 9 NWLR PT 1038 PG 66 @ PG 100 PARAS B-C, WOHEREM V. EMERUWA (2004) 13 NWLR (PT 890) PG 398 @ 415 PARAS F-H. Counsel urged the Court to hold that this action having being commenced on 14th August, 2017 is statute barred; is not maintainable and should be resolved in favour of the Applicant. ISSUE TWO: ‘‘WHETHER THE CLAIMANT’S CLAIMS AND/OR RELIEFS CAN BE PROPERLY DETERMINED UNDER AN ACTION COMMENCED BY ORIGINATING SUMMONS’’ It is the submission of Counsel that by virtue of Order 3 Rule 2(2) and 3 of the Rules of this Honourable Court, this suit was wrongly commenced by way of Originating Summons procedure in view of the contentious and speculative facts contained in the Affidavit in support of the Originating Summons. It is the contention of Counsel that it is now settled law that an action will be properly commenced by an Originating Summons where the facts are not contentious. On this submission reliance was placed on the case of Nwoko v. Ekerete (2010) 12 WRN PG. 179 at P. 188. It is the submission of counsel that the facts and circumstances of this case are such that issues must be properly joined between the parties and evidence led to establish the pleadings. According to counsel a holistic look at the claims (both declaratory and other reliefs) of the respondent as well as the affidavit in support of the Originating Summons and the attached exhibits will shows complexities in the facts in issue which cannot be resolved by affidavit evidence alone. The respondent has not and cannot establish the contentious issues of his entitlements to be resolved by mere averments in the supporting Affidavit. Counsel submitted that since this action was improperly commenced, it is incompetent. Consequently, this Honourable Court lacks the competence or jurisdiction to adjudicate over same. It is trite that one of the essential conditions for the court to be competent to adjudicate upon a matter is that is that the matter be commenced by due process. In support of this submission Counsel cited MADUKOLU v. NKEMDILI (1962)2 NSCC 374 and NWAKOR v. YAR’ADUA (2010) 45 WRN, 1 @ 41-42. Counsel urged this Court to strike out this suit for lack of jurisdiction on the ground of improper commencement. In concluding his submission counsel contended that from the totality of the submission above, it is obvious that this suit is grossly incompetent and invalid as same was not initiated by due process of law as stipulated in extant mandatory provisions which are necessary condition precedents for the invocation of the jurisdiction of the Honourable Court. Counsel urged the Court to so hold. REACTION OF THE RESPONDENT TO THE NOTICE OF PRELIMINARY OBJECTION. In reaction to the notice of preliminary objection the Respondent filed a reply on points of law. Wherein the two issues formulated by the applicant were adopted by the respondent. Michael Eleymi, Esq; counsel for the Respondent in his oral submission adopted the reply on points of law as his argument on the objection. In arguing issue one counsel submitted that the essence or effect of the public officer’s protection Act is to extinguish the cause of action if it is commenced after the stipulated period, which is the three months but subject to the exception provided for in section 2(a) of the Act. It is the submission of Counsel that in the interpretation of section 2(a) the Supreme Court in Independent National Electoral Commission v Ogbadibo Local Government & ors (2015) LPELR- 24839(SC, has provided exception to the general rule on section 2(a) of the Public Officers (Protection) Act, in cases of continuance of damage or injury, where a fresh cause of action from time to time as often as damage or injury is caused. Counsel contended that from the above it is submitted that the claimant who is still in service, has never been retired and cannot be statute barred in filing this suit since he is still in service and not yet retired, in support of this position reference was made to paragraphs 2, 37 and 38 of the Affidavit in Support of originating summons. It is the submission of Counsel that from the facts and circumstances of the claimant’s case, he is still very much in service resuming duty to the office of the 2nd Defendant and as such he has not contravened the public officer’s protection Act, as such the suit is not statute barred. ISSUE TWO ‘‘Whether the claimant’s claims and/or reliefs can be properly determined under an action commenced by originating summons’’. Counsel begun arguing this issue by submitting that the claimant is in court seeking the determination of the court on “whether upon the true and proper construction and Interpretation of Public Service Rules, 020501, 020502 and 020502 of 2008 respectively, 1st Defendant’s circular Reference No: FCSC/CHMC/CL17/Vol.1/36 of 22nd October, 2013 and the letter from the officer of the Federal Civil Service Commission to the claimant dated 15th December, 2015 approving the claimant’s transfer of service from the Delta state Civil service to the Main stream of the Federal Civil Service (the Ministry of Niger Delta Affairs) and the letter of the 1st defendant of 1st March, 2016 withdrawing the approval previously given by its letter of 15th December, 2015, the claimant should have retired properly from the services of the 2nd Defendant as chief confidential secretary SGL 14 in September, 2015. Counsel submitted that it is settled Law that an action will be properly commenced by an originating summons where the facts are not contentious. In support of this contention reliance was placed on Order 3 Rules 2(2) and 3 of the Rules of this Honourable Court. It is the contention of Counsel that the suit filed by the claimant is a suit that is not contentious and is also not speculative. Counsel insisted that the claimant is in court for the proper construction and interpretation of public service rules, circular and letters. According to Counsel this is strictly an affidavit evidence based case. The documents Exhibited in evidence are to aid the court in arriving at just conclusion of this case. It is well established that originating summons is usually used when what is in dispute is the mere construction of documents or interpretation of Law (as in the Claimant’s case) in respect of which pleadings are unnecessary. To buttress this point Counsel cited the case of Okon John & ors v Mobil Producing Nig unlimited & ors (2009) LPELR-8280(CA). In concluding his submission counsel contended that this suit has been commenced by due process and that this Honourable Court has Jurisdiction to entertain the claimant’s suit and urged the court to so hold and dismiss the 1st Defendant’s preliminary objection with substantial cost. COURT’s DECISION. Having regards to the processes filed in this suit as well as the notice of preliminary objection, the two issues formulated by the Applicant can adequately deal with the application under consideration. RESOLUTION OF ISSUE ONE The position of the Applicant is that this suit is statute barred for having been commence more than three Months from the accrual of the cause of action. On the other hand the Respondent is of the view that this is a case in which the exception to the general rule under section 2(a) of the public Officers (Protection) Act, applies in that there is continuance of damage or injury. It is to be noted that the essence of section 2(a) of the Public Offiers (Protection) act is to extinguish the cause of action, if an action is commenced after the stipulated period, which is three Months subject to the exception provided for in section 2(a) of the Act. Thus, where there has been a continuance of injury or damage, a fresh cause of action arises from time to time, as often as damage or injury is caused. See INEC V OGBADIBO LOCAL GOERNMENT COUNCIL, AREMO V ADEKANYE, EGBE V ADEFARASIN 1987 1 NWLR PT47 1; IBRAHIM V JSC 1998 14 NWLR PT 584 1; AJAYI V ADEBIYI 2012 11 NWLR PT1310 137, ALHAJI ADO IBRAHIM V ALHAJI MAIGIDA U. LAWAL & ORS. 2015 LPELR-SC.99/2009 delivered on 5/6/2015. The continuance of damage or injury constitute an exception to the general rule. It was held in OBUEFUNA V OKOYE (1961) ALL NLR 357 @ 360, that; ‘‘continuance of damage means continuance of the legal injury and not merely continuance of the injurious effect of a legal injury’’. See also OLAOSEBIKAN V WILLIAMS 1996 5 NWLR PT.449 437 @ 456-457. Also in INEC V OGBADIBO LOCAL GOVERNMENT (Supra) Okoro, JSC, stated that ‘‘continuance of injury’’ means the continuance or repeat of the act which caused the injury. It does not and cannot be said to mean the concomitant effect of the damage or injury’’. The reliance by the respondent on continuance of damage or injury, in defence to the issue of statute barred has narrowed down the for consideration in that the respondent has agreed that this suit was instituted outside the three months period allowed by the law. To establish whether the case of the Respondent falls within the exception to the general rule in section 2(a), the facts as disclosed in the Originating summons will be considered and apply the principle of law as enunciated by the Supreme Court in above cited cases. It is patently clear from the reliefs being sought and the affidavit evidence in support of the Originating Summons that the grouse of the Respondent falls squarely on exhibit 14 attached to the affidavit in support of the originating summons which is a letter dated 1/3/16, withdrawing exhibit 11 letter of approval of regularization of transfer of service of the Respondent. This suit is aimed at nullifying/setting aside of exhibit 14. The averments in paragraphs 2 and 4 of the affidavit in support of the Originating Summons clearly showed that the Respondent date of retirement from service was September 2015. The Respondent commenced this suit on 14/8/17. From the 1/3/16 when letter of withdrawal of exhibit 11 was issued to the 14/8/17, when this suit was instituted is a period of one year five Months. This clearly shows that this suit was not commenced within the period of three Months as required by law taking into consideration the fact that there is only one withdrawal vide exhibit 14, then there is no continuance of damage or injury that will enable the operation of the exception of section 2(a) of the Public Officers (protection) Act. In view of the foregoing, reliefs a, b, d, and f are caught by the statute of limitation. However, on reliefs’ c and e, being claims on payment of work done is not caught by the statute of limitation. I so hold. RESOLUTION OF ISSUE TWO The question to be resolved here boils down to the propriety of using Originating Summons to commence this suit. The Applicant has contended that originating Summons is not appropriate to commence a suit of this kind. While the Respondent argued that the question to be resolved borders on construction of documents which were attached to the affidavit in support of the Originating Summons. In our jurisprudence mode of commencement of action is an indispensable aspect of our civil procedure; hence various courts have it embodied in their civil procedure rules. Originating summons is no doubt one of the means by which an action can be commenced before this court. The procedure is meant to eliminate pleadings that will require witnesses to appear before the court for proof of the averments. Order 3 rule 2(2)(a) of the Rules of this Court have clearly allowed the use of originating summons in commencing action that are only for interpretation alone. However, where an action involved interpretation and application that action must be commenced by way of complaint. See Order 3 Rule 2(2) (b) of the National Industrial Court of Nigeria, (Civil Procedure) Rules, 2017. See also Rule 17 of Order 3 of the rules of this court. Vide the resolution of issue one above most of the reliefs have been found to have been caught by statute of limitation. The only reliefs now standing are reliefs c and f. a critical examination of the two reliefs remaining in this suit will clearly revealed that the resolution of the reliefs may likely involved disputes on facts. In the circumstances I am of the view that the use of Originating Summons is not appropriate in resolution of the remaining reliefs in this case. By virtue of order 3 Rule 17(2) of the NICN Rules 2017, this Court is enjoined in a situation like this where facts may be in dispute not to strike out the Originating Summons but to order conversion of the Originating Summons to Complaint. In the exercise of this power I hereby ordered that the Originating Summons in so far as it relates to Reliefs c and f should be converted to complaint in line with Order 3 Rules 8 and 9, of the rules of this Court. In the final analysis the Applicant’s notice of preliminary objection succeeds in part. For avoidance of doubt the Order of the Court is:- Relies a, b, d, and f as contained in the Originating Summons are caught by section 2(a) of the Public Officers (Protection) Act, and are hereby dismissed. Reliefs c and e in the Origination are saved from statute of limitation for being claims on work done. The Respondent is to convert his Originating Summons to Complaint in so far as claims c and e are concerned. This should be done within fourteen days of this order. The defendant shall in turn file his defence within fourteen day from the date of service on him of the claimant’s processes. I make no order as to cost. Sanusi Kado, Judge.