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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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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.”

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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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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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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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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

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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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