A Short Treatise On Originating Summons -By Kater David Aorga

Originating Summons is a mode of commencing a civil action in court where there are no disputes of fact involved, but rather there is an issue concerning the interpretation of law or documents. This is a relatively simplistic definition of Originating Summons and it is certainly the case that judicial scholars and authorities, can give us a better view of the concept.

 

 

In the case of Sani v. Kogi State House of Assembly [2019] 4 NWLR (pt. 1661) 172, 183-184, paras H-D, the Supreme Court highlighted the domain of Originating Summons as thus:

In effect, Originating Summons is a procedure wherein the evidence is mainly by way of documents and there is no serious dispute as to their existence to the pleadings. It is usually heard on affidavit evidence and involves questions of law rather than issues of fact.

Furthermore, in the case of Standard Cleaning Services Company v. The Council of Obafemi Awolowo University, Ile-Ife (2011) 14 NWLR (pt. 1269) 193, the court held that:

Originating Summons should only be applicable in circumstances where there is no dispute on the question of facts or even the likelihood of such dispute.

By the above holding, we see that the use of Originating Summons to institute a proceeding in court must be when a matter involves questions of law and there is no contention involving the evidence presented or the facts involved in a matter. Conversely, an Originating Summons would not be proper for use in a case whereby there is a contention that goes beyond the question of law into the realm of facts in a matter. This was also held by the court in the above case.

The impropriety of using an Originating Summons where the matter was contentious and involved the disputation of facts was further practicalized most recently in the case of A.P.C. V. Bashir Sheriff & 2 ors (2023) – SC, whereby the court held that an Originating Summons procedure could not be lawfully used in a matter involving allegation of fraud and misrepresentation, with such allegations as disputed facts as the matter was too contentious and would require proof beyond reasonable doubt even in a civil proceeding. The proper mode of instituting the action as stated alternatively by the court, would be by means of a Writ of Summons. Consequently, since an Originating Summons cannot be used in contentious matters (matters involving dispute, in this case, of facts), its brother, the Writ of Summons, is lawful for use in its stead.

An Originating Summons must be accompanied by:

(a) An affidavit setting out the facts relied upon;

(b) The exhibits to be relied upon;

(c) A written address in support of the application.

It is also noteworthy to set out the exact contents of an Originating Summons:

(a) Statement of the questions which the claimant seeks determination by the Court;

(b) Statement of the relief or remedy claimed in the proceeding;

(c) Cause or causes of action which warrants the claimant’s claims to the relief or remedy sought.

 

By Kater David Aorga

(BINGHAM UNIVERSITY)

 

REFERENCE:

www.judy.legal

 


Log in to primsol.lawpavilion.com and enjoy the best E-journals, textbooks, and many more

To subscribe to Primsol, go to store.lawpavilion.com.

For further enquiries/assistance, send an email to customercare@lawpavilion.com or call 08050298729



Call Bridget Edokwe Esq on 08060798767 or send your email to barristerngblog@gmail.com



The cost of the book is Seven Thousand Naira (N7,000) only. Call 08037667945 OR 08028636615 ;  or Email:princetonedu2012@yahoo.com; bookpublishing2017@gmail.com; princetonpub.com  to get your copy.




Author: Prof Theodore Okonkwo, Ph.D
: CALL: 08065159968; 08068771923: PRICES: N100,000 (SPECIAL EDITION), N60,000.00 (UNIVERSAL EDITION)


Digital Evidence and eDiscovery Law Practice in Nigeria -By Emeka Arinze Esq. [ORDER NOW] – For book cost & placing order, visit www.decfi.com.ng/order


Steps To Subscribe To the Court of Appeal Reports Nigeria


Get ‘Personal Property Law in Nigeria’ By Chief Mike A.A. Ozekhome, SAN (FREE)

Click below to download FREE

https://www.pulp.up.ac.za/monographs/personal-property-law-in-nigeria


ADVERTISEMENT

BESTSELLER: Commercial and Economic Law in Nigeria By Chief Mike Ozekhome, SAN [ORDER NOW]

To ORDER click the link

https://kluwerlawonline.com/EncyclopediaChapter/IEL+Commercial+and+Economic+Law/COMM20210001