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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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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 NOT SUITABLE WHERE FACTS ARE IN DISPUTE

The law is indeed well settled that Originating Summons procedure for initiating action is not suitable and therefore not available for action involving hostile proceedings where the facts are seriously in dispute.

– Mahmud, 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 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.”

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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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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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