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!

IF NO SUBSTANTIAL DISPUTE THEN ORIGINATING SUMMONS SHOULD BE USED

Reach more audience. Place advert here.

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?

SHARE ON

originating summons

ORIGINATING SUMMONS NOT FOR CONTENTIOUS FACTS

The practice is usually that originating summons is not a proper procedure where contentious issues of fact are to be resolved by the court.

– AKA’AHS, J.S.C. Danladi v. Dangiri (2014)

Was this dictum helpful?

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

Was this dictum helpful?

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.”

Was this dictum helpful?

ABSENCE OF SIGNATURE OF THE JUDGE ON THE ORIGINATING SUMMONS – NON-COMPLIANCE

It is pertinent to observe that the competence of the court to exercise jurisdiction is not questioned on any other than the ground alleging want of signature of the Judge. Accordingly, for appellants to succeed they must show that the absence of the signature of a High Court Judge to an originating summons, is fatal to the validity of the proceedings initiated by it. Stricto sensu, there is no provision in the rules of court indicating the effect of noncompliance with its provisions.

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

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?

REASON FOR LEAVE TO BE OBTAINED BEFORE ISSUE OF ORIGINATING SUMMONS TO BE SERVED OUTSIDE JURISDICTION

In my opinion it makes for a better understanding and application of our rules to appreciate the raisons d’etre which underlie their prescription. In this regard, the raison d’etre of the rule that leave should be obtained before the issue of an originating summons to be served out of the jurisdiction of the court is well put in Halsbury’s Laws of England (Vol. 37) (4th Edition) at para 171 as follows: ‘Service out of the jurisdiction is recognised as the exercise by the English court of judicial power over a foreigner who owes no allegiance to the United Kingdom or over a person who is resident or domiciled out of the jurisdiction, but is nevertheless called upon to contest claims made against him in England and Wales. However, it is generally accepted that, in accordance with the comity of nations, each nation is entitled, in circumstances permitted by its own laws, to exercise judicial power over persons in other countries; but, of course, the exercise of such sovereign power by the issue and service of judicial process over persons in another country is prima facie an infringement of the sovereignty of the other country.

— O. Ayoola, JSC. Carribean v NNPC (2002) – SC.74/1993

Was this dictum helpful?

No more related dictum to show.