Judiciary-Poetry-Logo
JPoetry

ABSENCE OF SIGNATURE OF THE JUDGE ON THE ORIGINATING SUMMONS – NON-COMPLIANCE

Dictum

It is pertinent to observe that the competence of the court to exercise jurisdiction is not questioned on any other than the ground alleging want of signature of the Judge. Accordingly, for appellants to succeed they must show that the absence of the signature of a High Court Judge to an originating summons, is fatal to the validity of the proceedings initiated by it. Stricto sensu, there is no provision in the rules of court indicating the effect of noncompliance with its provisions.

— Karibe-Whyte, JSC. Saude v. Abdullahi (1989) – SC.197/1987

Was this dictum helpful?

SHARE ON

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

Was this dictum helpful?

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 on the path of the court from rushing to determine such a claim on affidavit evidence alone in an Originating Summons, as such a case is, in my view, one more suited and proper for determination on the pleadings and evidence of the parties under the procedure by way of a Writ of Summons.

— C.C. Nweze, JSC. APC v. Sheriff (2023) – SC/CV/1689/2022

Was this dictum helpful?

ORIGINATING SUMMONS CANNOT BE USED WHERE FACTS ARE IN DISPUTE

It is now firmly settled that an Originating Summons, is an unusual method of commencing proceedings in the High Court and it is confined to cases where special statutory provisions exist for its application. It is not advisable, to make use of this procedure for hostile proceedings where the facts are in dispute as in the instant case leading to this appeal.

– I.F. Ogbuagu JSC. Osunbade v. Oyewunmi (2007) – SC.79/2002

Was this dictum helpful?

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.”

Was this dictum helpful?

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 Practice in Civil Actions (Twentieth Ed) (New Delhi – India: Universal Law Publishing Co. Pvt. Ltd, 2010) 352; F. Nwadialo, Civil Procedure in Nigeria (Lagos: University of Lagos Press, 2000) 211; Arjay Ltd and Ors v A. M. S. Ltd (2003) LPELR -555 (SC) … The situation is different in a suit commenced by Writ of Summons where the facts are regarded as holding a pride of place and the fountain head of the law in the sense that the facts lead to a legal decision on the matter. That is not the position in proceedings commenced by Originating Summons, where facts do not play a central role but an infinitesimal role. On the distinction between Originating Summons and Writ of Summons, see the following cases: Dapianlong v. Dariye (supra); Keyamo v. House of Assembly, Lagos State [2002] 18 NWLR (pt. 799) 605; Director, SSS v. Agbakoba [1999] 3 NWLR (pt. 595) 314; Famfa Oil Ltd v. Attorney-General, Federation and Anor [2003] 18 NWLR (pt. 852) 453; Inakoju v. Adeleke (supra); and Attorney-General, Adamawa State and Ors v. Attorney-General, Federation and Ors (2005) LPELR- 602 (SC).

— C.C. Nweze, JSC. APC v. Sheriff (2023) – SC/CV/1689/2022

Was this dictum helpful?

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.”

Was this dictum helpful?

No more related dictum to show.