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ORIGINATING SUMMONS CANNOT BE USED WHERE FACTS ARE CONTENTIOUS

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OBASANYA v. BABAFEMI (2000) 23 WRN (Pt.689) 1 at 17 stated again as follows: “Where the facts are controversial or contentious and cannot be ascertained without evidence being adduced, originating summons should not be appropriately used; and if used it should be discountenanced. See N. B. N. & ANOR VS. ALAKIJA (1978) 2 LRN 78 see also DOHERTY VS. DOHERTY (1964) N.M.L.R. 144, UNILAG VS. AIGORO (1991) 3 NWLR (Pt.179) 367; ANATOGU Vs. ANATOGU (1997) 9. The provision of Order 3 Rule 2 of the High Court of Lagos State (Civil Procedure) Rules 1994 (supra) quite clearly provides that the originating summons procedure is only suitable for cases where the sole or principle question is one of construction of document. In the construction of such documents, law or instruments no evidence is required or adduced. Facts constituting an allegation of fraud by their very nature are controversial.”

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IF NO SUBSTANTIAL DISPUTE THEN ORIGINATING SUMMONS SHOULD BE USED

It is clear from the above that an action could be brought by originating summons if the issues involved are not in dispute or in controversy or not likely to be in dispute or in controversy. Putting it negatively, where the issues are in dispute or are contentious, an originating summons procedure will not lie....

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CASES WHERE ORIGINATING SUMMONS HAVE BEEN APPLIED

As a child of the English common law, the Nigerian legal system spontaneously followed the above position of the law.
In Lagos Executive Development Board v. Awode (1995) 21 NLR 50, where plaintiff brought an action by originating summons for: (i) forfeiture of a lease; (ii) arrears of rent by virtue of sections 12, 38, 47, 50 and 53 of the Lagos Town Planning Ordinance, the court held that the section did not entitle the plaintiff to proceed by originating summons in a claim of that nature and that the action must be commenced by writ in the ordinary way.
In Doherty v. Doherty [1968] NMLR (pt.2) 241, the court held that it is generally unadvisable to employ an originating summons for proceedings against an invitee, and this procedure is of course quite unsuitable where the facts are in dispute, as the evidence is by way of affidavit.
In National Bank of Nigeria v. Alakija (1978) 2 LR 78, the court held that justice could only be done between the parties if all the facts were presented to the court in formal pleadings and the proceedings should have been commenced by writ rather than by originating summons.
In Oloyo v. Alegbe Speaker Bendel State House of Assembly [1983] 2 SCNLR 35, it was held that the action was misconceived in that it was not a dispute to be resolved by way of originating summons in view of the conflicts on crucial issues and facts. It should have been begun by a writ.
In Din v. Attorney-General of the Federation [1986] 1 NWLR (Pt. 17) 471, the Court of Appeal re-echoed the decision of the Supreme Court in the National Bank case and held that commencement of actions by originating summons is a proceeding which should only be used in cases where the facts are not in dispute or there is no likelihood of their being in dispute. Originating summons is also reserved for issues like the determination of questions of a Constitution and not matters of such controversy that justice of the case could demand the setting of pleadings. Since the affidavits in the case were conflicting, the matter could be taken by originating summons.

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ORIGINATING SUMMONS NOT SUITABLE WHERE FACTS ARE IN DISPUTE

The law is indeed well settled that Originating Summons procedure for initiating action is not suitable and therefore not available for action involving hostile proceedings where the facts are seriously in dispute. – Mahmud, JSC. Elelu-Habeeb v. A.G Federation (2012) Was this dictum helpful? Yes 0 No 0...

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ORIGINATING SUMMONS NOT FOR CONTENTIOUS FACTS

The practice is usually that originating summons is not a proper procedure where contentious issues of fact are to be resolved by the court. – AKA’AHS, J.S.C. Danladi v. Dangiri (2014) Was this dictum helpful? Yes 0 No 0...

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FRAUD CANNOT BE DETERMINED IN AN ORIGINATING SUMMONS PROCEEDINGS

I am aware that it is not every seeming conflict arising from affidavit evidence that would warrant the calling of or resort to oral evidence for its resolution. However, where the issues of facts are contentious and border of the copious allegations of fraudulent practices as in the first respondent’s suit, it calls for caution...

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WHERE INTERPRETATION IS NEEDED ORIGINATING SUMMONS IS APPROPRIATE

KEYAMO VS. HOUSE OF ASSEMBLY, LAGOS STATE (2000) 11 W.R.N. 29 at 40, (2000) 12 NWLR (Pt. 680) 796 at 213 stated as follows: “I must state that the correct position of the law is that originating summons is used to commence an action where the issue involved is one of the construction of a written law or of any instrument made under a written law, or of any deed, contract or other document or some other question of law or where there is unlikely to be any substantial dispute of fact. This is the provision of Order 3 Rule 2 (2) of the Lagos State Civil Procedure (supra)”

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