ABSENCE OF SIGNATURE OF A JUDGE IN AN ORIGINATING SUMMONS

ORIGINATING SUMMONS IS USED FOR FACTS WITH NO SUBSTANTIAL DISPUTE

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.”

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.”

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.”

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.

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