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ORIGINATING SUMMONS NOT FOR CONTENTIOUS FACTS

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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)

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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 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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CASES WHERE ORIGINATING SUMMONS HAVE BEEN APPLIED

As a child of the English common law, the Nigerian legal system spontaneously followed the above position of the law.
In Lagos Executive Development Board v. Awode (1995) 21 NLR 50, where plaintiff brought an action by originating summons for: (i) forfeiture of a lease; (ii) arrears of rent by virtue of sections 12, 38, 47, 50 and 53 of the Lagos Town Planning Ordinance, the court held that the section did not entitle the plaintiff to proceed by originating summons in a claim of that nature and that the action must be commenced by writ in the ordinary way.
In Doherty v. Doherty [1968] NMLR (pt.2) 241, the court held that it is generally unadvisable to employ an originating summons for proceedings against an invitee, and this procedure is of course quite unsuitable where the facts are in dispute, as the evidence is by way of affidavit.
In National Bank of Nigeria v. Alakija (1978) 2 LR 78, the court held that justice could only be done between the parties if all the facts were presented to the court in formal pleadings and the proceedings should have been commenced by writ rather than by originating summons.
In Oloyo v. Alegbe Speaker Bendel State House of Assembly [1983] 2 SCNLR 35, it was held that the action was misconceived in that it was not a dispute to be resolved by way of originating summons in view of the conflicts on crucial issues and facts. It should have been begun by a writ.
In Din v. Attorney-General of the Federation [1986] 1 NWLR (Pt. 17) 471, the Court of Appeal re-echoed the decision of the Supreme Court in the National Bank case and held that commencement of actions by originating summons is a proceeding which should only be used in cases where the facts are not in dispute or there is no likelihood of their being in dispute. Originating summons is also reserved for issues like the determination of questions of a Constitution and not matters of such controversy that justice of the case could demand the setting of pleadings. Since the affidavits in the case were conflicting, the matter could be taken by originating summons.

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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

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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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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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