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FRAUD CANNOT BE DETERMINED IN AN ORIGINATING SUMMONS PROCEEDINGS

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Dictum

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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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

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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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ORIGINATING SUMMONS AND AFFIDAVITS

In this appeal, the main action was commenced by way of Originating Summons. Under this procedure, pleadings are not filed nor witnesses called. It is, generally, heard on affidavit evidence deposed to in support and in opposition, with documents exhibited, Famfa Oil Ltd v. Attorney-General, Federation and Anor [2003] LPELR-1239 (SC); JEV and Anor v. Iyortyom and Ors[2014] LPELR-23000 (SC); Zakirai v. Muhammmad and Ors [2017] LPELR- 42349 (SC). As earlier stated, in deciding an interlocutory application, a Court should endeavor to limit itself to the dispositions made in the affidavit evidence before it. Thus, having regard to the nature of the originating process, and there being nothing but documentary evidence placed before the lower Court, the lower Court was in a good position to examine the entire affidavit evidence and the other documents placed before the trial Court in determining whether the ruling of the trial Court with regards to the preliminary objection was correct, Chief Agbaisi and Ors v Ebikorefe and Ors [1997] 4 SCNJ 147, 160; Agbahomovo and Ors v. Eduyegbe and Ors. [1999] 3 NWLR (pt. 594) 170; Jikantoro and Ors, v. Dantoro and Ors. [2004] 5 SCNJ 152, 177; Agbareh and Anor v. Mimrah and Ors, [2008] LPELR-43211 (SC).

— C.C. Nweze, JSC. Uzoho v NCP (SC.141/2007, Friday, May 13, 2022)

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IF NO SUBSTANTIAL DISPUTE THEN ORIGINATING SUMMONS SHOULD BE USED

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

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WHERE INTERPRETATION IS NEEDED ORIGINATING SUMMONS IS APPROPRIATE

KEYAMO VS. HOUSE OF ASSEMBLY, LAGOS STATE (2000) 11 W.R.N. 29 at 40, (2000) 12 NWLR (Pt. 680) 796 at 213 stated as follows: “I must state that the correct position of the law is that originating summons is used to commence an action where the issue involved is one of the construction of a written law or of any instrument made under a written law, or of any deed, contract or other document or some other question of law or where there is unlikely to be any substantial dispute of fact. This is the provision of Order 3 Rule 2 (2) of the Lagos State Civil Procedure (supra)”

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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.”

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