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FRAUD CANNOT BE DETERMINED IN AN ORIGINATING SUMMONS PROCEEDINGS

Dictum

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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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)”

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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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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

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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.”

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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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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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