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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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ORIGINATING SUMMONS IS NOT SUITABLE FOR CONTROVERSIAL CASES

The principle has become trite that the originating summons procedure is not for causes in which facts remain hostile and in conflict. The procedure is ideal for the determination of short and straight forward questions of construction and interpretation of documents or statutes. It is never the applicable procedure in controversial cases where the facts on which the court is invited to construe or interpret the document or legislation in relation to remain violently in conflict. See also Famfa Oil Limited v. AG of the Federation & anor [2003] LPELR-1239(SC); [2003] 18 NWLR (Pt. 852) 453.

Olatunji v UBER (2018) – NICN/LA/546/2017

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INTRODUCTION OF ORIGINATING SUMMONS

The English Common Law which Nigeria received has developed a corpus juris on when an action can and cannot be commenced by originating summons. The procedure for originating summons came into the English Legal System by the Chancery Procedure Act of 1852 which replaced the old mode of commencing proceedings in the Court of Chancery...

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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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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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COMMENCING BY ORIGINATING SUMMONS OR BY WRIT OF SUMMONS

As demonstrated above, Originating Summons is, particularly, employed in commencing a suit when what is in dispute is the mere construction of documents or interpretation of law in respect of which pleadings are unnecessary or where there is no real dispute as to facts between the parties, G. F. Harwood, Odger’s Principles of Pleadings and...

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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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