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FRAUD CANNOT BE DETERMINED IN AN ORIGINATING SUMMONS PROCEEDINGS

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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

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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 by “bill” with the commencement of a suit in certain cases only by summons originating proceedings in chambers. In 1883, the rules of the Supreme Court 1875 were stated and the term originating summons was for the first time introduced. See Re Holloway (A solicitor ex-parte Pallister (1894) 2 QS 163. See also Re Priver, Lindsell v. Phillips (1885) 30 Ch. D 291; In Re Giles Real and Personal Coy v. Michell (1890) 43 Ch. 0391; Nutten v. Holland (1894) 3 Ch. 408.

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

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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 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

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ORIGINATING SUMMONS NOT SUITABLE FOR HOSTILE PROCEEDINGS

The merits of the originating summons lie in the fact that proceedings commenced thereby are very expeditiously dealt with as the action is almost invariably ready for hearing after the defendant had filed his counter-affidavit. Pleadings are not filed by the parties; witnesses are rarely examined, while affidavit evidence is used. Proceedings for which it is used therefore usually involve question of law rather than disputed facts. An originating summons should not be adopted if the proceedings are hostile proceedings.

– Adekeye, JSC. Elelu-Habeeb v. A.G Federation (2012)

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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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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)

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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 reference to such document and it is these questions and the accompanying reliefs or prayers that embody the issues for determination in the action.

– Bage JCA. Ayetobi v. Taiwo (2014)

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