STOP SEEING INTRUSIVE ADS, & HAVE PREMIUM FEATURES? Stop seeing intrusive ads and have a smoother reading experience, once you sign up on Judicial Poetry. Sign up now!

COMMENCING BY ORIGINATING SUMMONS OR BY WRIT OF SUMMONS

Reach more audience. Place advert here.

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?

SHARE ON

originating summons

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)”

Was this dictum helpful?

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. In such a situation, the party must initiate the action by a writ of summons, a procedure which accommodates pleadings of facts. An action could be brought by originating summons where the sole or principal question in issue is or is likely to be one of construction of a statute, or of any instrument made under a statute or of any deeds, will, contract, or other document or some other question of law. It is not the law that once there is dispute on facts, the matter should be commenced by writ of summons. No. That is not the law. The law is that the dispute on facts must be substantial, material, affecting the live issues in the matter. Where disputes are peripheral, not material to the live issues, an action can be sustained by originating summons. After all, there can hardly be a case without facts. Facts make a case and it is the dispute in the facts that give rise to litigation.

— Niki Tobi JSC. Pam & Anor. V Mohammed (2008) – SC.238/2007

Was this dictum helpful?

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 on the part of the court, the defect is merely administrative and did not render the originating summons or proceedings consequent thereto a nullity.

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

Was this dictum helpful?

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 his assuming jurisdiction on the matter.

– Bage JCA. Ayetobi v. Taiwo (2014)

Was this dictum helpful?

ORIGINATING SUMMONS AND AFFIDAVITS

In this appeal, the main action was commenced by way of Originating Summons. Under this procedure, pleadings are not filed nor witnesses called. It is, generally, heard on affidavit evidence deposed to in support and in opposition, with documents exhibited, Famfa Oil Ltd v. Attorney-General, Federation and Anor [2003] LPELR-1239 (SC); JEV and Anor v. Iyortyom and Ors[2014] LPELR-23000 (SC); Zakirai v. Muhammmad and Ors [2017] LPELR- 42349 (SC). As earlier stated, in deciding an interlocutory application, a Court should endeavor to limit itself to the dispositions made in the affidavit evidence before it. Thus, having regard to the nature of the originating process, and there being nothing but documentary evidence placed before the lower Court, the lower Court was in a good position to examine the entire affidavit evidence and the other documents placed before the trial Court in determining whether the ruling of the trial Court with regards to the preliminary objection was correct, Chief Agbaisi and Ors v Ebikorefe and Ors [1997] 4 SCNJ 147, 160; Agbahomovo and Ors v. Eduyegbe and Ors. [1999] 3 NWLR (pt. 594) 170; Jikantoro and Ors, v. Dantoro and Ors. [2004] 5 SCNJ 152, 177; Agbareh and Anor v. Mimrah and Ors, [2008] LPELR-43211 (SC).

— C.C. Nweze, JSC. Uzoho v NCP (SC.141/2007, Friday, May 13, 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.