THE MODE OF COMMENCEMENT OF ACTION IS IRRELEVANT; CAN THE ISSUES IN THE DISPUTE BE FAIRLY DETERMINED IRRESPECTIVE?
Bello v. Minister, F.M.H. & U.D. (2026) 12 NWLR (Pt. 2055) 547 at 575: ‘The approach of the Court of Appeal to the determination of this issue in this case is wrong. The judgment of the Court of Appeal focused on determining only that the use of originating summons was unsuitable or inappropriate to commence an action involving rival claim of ownership of land and an action likely to be contentious or extremely hostile, did not have regard to the fact that the case had been heard and determined on the basis of the originating summons, the affidavits of both sides and supporting documents, and did not border to consider if the hearing and determination of the suit on the basis of the originating summons, the affidavits of both sides and supporting documents caused miscarriage of justice against any of the parties or yielded the justice of the case … Where, as in our instant case, the suit which was commenced by originating summons has been tried and determined, the relevant consideration is not whether it was competently commenced by originating summons, but whether the issues in the dispute were fairly determined on the affidavit evidence and the party who had the burden to prove any fact in issue or dispute proved it on the affidavit evidence or not. In actions commenced by originating summons the parties are not limited to their affidavits in the discharge of the burden placed on them by law to prove any disputed fact as they can with leave of court call oral evidence to resolve the dispute and thereby prove the fact. What to look out for is whether the relevant or material facts upon which the determination of the case of the parties depend were in conflict and if so, whether the conflicts were resolvable on the affidavits and the documents attached to them without the need to call oral or further evidence to resolve them.Where the relevant or material facts of a case are not in dispute or even if disputes exist and such disputes were resolvable on the affidavits and documents accompanying them, there would be no need to call oral evidence to prove the disputed facts, Where the state of the competing affidavits show the need for oral or further evidence to resolve factual issues joined in them, then the party who by law has the burden to prove that fact has failed to prove it and the court would be wrong to act on it as a proven fact … An unending line of decisions of this court have restated the law on the use of originating summons to commence an action. It is now elementary that if the relevant or material facts upon which the resolution of the dispute is based are not in dispute or that even if in dispute and such dispute can be resolved or reconciled on the basis of documents attached to the affidavits, the case can be determined on the originating summons.’