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INTRODUCTION OF ORIGINATING SUMMONS

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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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ORIGINATING SUMMONS CANNOT BE USED WHERE FACTS ARE IN DISPUTE

It is now firmly settled that an Originating Summons, is an unusual method of commencing proceedings in the High Court and it is confined to cases where special statutory provisions exist for its application. It is not advisable, to make use of this procedure for hostile proceedings where the facts are in dispute as in the instant case leading to this appeal.

– I.F. Ogbuagu JSC. Osunbade v. Oyewunmi (2007) – SC.79/2002

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CLAIM DETERMINES IF AN ORIGINATING SUMMONS IS APPROPRIATE

From the above therefore, the first duty of a trial judge, where action are begun or initiated by means of an originating summons procedure, is to examine the claim before him, and then to ascertain whether the procedure in originating summons was suitable or appropriate to the action. This first step, is sine qua-non to his assuming jurisdiction on the matter.

– Bage JCA. Ayetobi v. Taiwo (2014)

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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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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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FRAUD CANNOT BE DETERMINED IN AN ORIGINATING SUMMONS PROCEEDINGS

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 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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