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ORIGINATING SUMMONS IS USED FOR FACTS WITH NO SUBSTANTIAL DISPUTE

Dictum

In 1907, Neville, J. clearly stated the principle in the English case of Re King. Mellor v. South Australian Land Mortgage and Agency Coy (1907) 1 Ch. 72: “In other words, it is our considered view that originating summons should only be applicable in such circumstances as where there is no dispute on questions of fact or the likelihood of such dispute. Where, for instance, the issue is to determine short questions of construction, and not matters of such controversy that the justice of the case would demand the settling of pleadings, originating summons could be applicable. For, it is to be noted that originating summons is merely a method of ‘procedure and not one that is meant to enlarge the jurisdiction of the court.”

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REASON FOR LEAVE TO BE OBTAINED BEFORE ISSUE OF ORIGINATING SUMMONS TO BE SERVED OUTSIDE JURISDICTION

In my opinion it makes for a better understanding and application of our rules to appreciate the raisons d’etre which underlie their prescription. In this regard, the raison d’etre of the rule that leave should be obtained before the issue of an originating summons to be served out of the jurisdiction of the court is...

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CLAIM DETERMINES IF AN ORIGINATING SUMMONS IS APPROPRIATE

From the above therefore, the first duty of a trial judge, where action are begun or initiated by means of an originating summons procedure, is to examine the claim before him, and then to ascertain whether the procedure in originating summons was suitable or appropriate to the action. This first step, is sine qua-non to...

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ABSENCE OF SIGNATURE OF A JUDGE IN AN ORIGINATING SUMMONS

Although I do not agree with learned counsel to the respondents in his submission that absence of the signature of a Judge in an originating summons is a mere technicality, I think it is correct to say that the defect did not render the originating summons a nullity. Where the non-compliance with the rules is...

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ORIGINATING SUMMONS NEEDED WHERE NO DISPUTE OF FACT

NATIONAL BANK OF NIG VS. ALAKIJA & ANOR (1978) 2 L.R.N. 78, I had cause to review the whole history of originating summons and then held: Originating Summons should only be applicable in such circumstances as where there is no dispute on question of fact or (even) the likelihood of such dispute. “[page 86 ibid) originating summons is reserved for issues like the determination of short question of construction and not matters of such controversy that the justice of the case would demand the settling of Pleadings.”

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ORIGINATING SUMMONS CANNOT BE USED WHERE FACTS ARE CONTENTIOUS

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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WHERE ORIGINATING SUMMONS IS TO BE USED

The law is already trite that, before a proceeding can be commenced by originating summons, the construction of a written law, or instrument made there under or deed or will or contract or other document must be in issue. It means that in any of such cases certain questions must have arisen for determination with...

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