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)

Was this dictum helpful?

ORIGINATING SUMMONS NEEDED WHERE NO DISPUTE OF FACT

NATIONAL BANK OF NIG VS. ALAKIJA & ANOR (1978) 2 L.R.N. 78, I had cause to review the whole history of originating summons and then held: Originating Summons should only be applicable in such circumstances as where there is no dispute on question of fact or (even) the likelihood of such dispute. “[page 86 ibid) originating summons is reserved for issues like the determination of short question of construction and not matters of such controversy that the justice of the case would demand the settling of Pleadings.”

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?

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

Was this dictum helpful?

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)

ABSENCE OF SIGNATURE OF A JUDGE IN AN ORIGINATING SUMMONS

Reach more audience. Place advert here.

Was this dictum helpful?

ORIGINATING SUMMONS NOT SUITABLE WHERE FACTS ARE IN DISPUTE

Was this dictum helpful?

ORIGINATING SUMMONS NEEDED WHERE NO DISPUTE OF FACT

Was this dictum helpful?

ORIGINATING SUMMONS IS USED FOR FACTS WITH NO SUBSTANTIAL DISPUTE

Was this dictum helpful?

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

Was this dictum helpful?

ORIGINATING SUMMONS CANNOT BE USED WHERE FACTS ARE IN DISPUTE

Was this dictum helpful?

WHERE ORIGINATING SUMMONS IS TO BE USED

Was this dictum helpful?