An originating summons is a legal document used to commence certain types of civil proceedings in Nigeria. It is a streamlined process designed for cases where the main issues are legal interpretations rather than factual disputes. This article will explore the concept, rules, procedures, and relevant case laws concerning originating summons in Nigeria.
Purpose and Application
The primary purpose of this mode of commencement of action is to provide a quicker and more efficient method of resolving legal issues that revolve around the interpretation of documents, statutes, or questions of law, where there is no substantial dispute of facts. It is often used in matters such as:
- Probate and administration of estates
- Interpretation of wills, trusts, and contracts
- Issues concerning the administration of companies and partnerships
- Questions on the construction of statutes or regulations
Relevant Court Rules
In Nigeria, the modes of commencement of actions in different courts are governed by various rules of court, depending on the jurisdiction and the court in question. The most notable include:
- Federal High Court (Civil Procedure) Rules 2019:
- Order 3, Rule 6 states: “Any person claiming to be interested under a deed, will, enactment, or other written instrument may apply by originating summons for the determination of any question of construction arising under the instrument and for a declaration of the rights of the persons interested.”
- Order 3, Rule 8 outlines the procedure for commencing an action via originating summons, including the requirement to support the summons with an affidavit setting out the facts on which the applicant relies.
- Lagos State High Court (Civil Procedure) Rules 2019:
- Order 3, Rule 5: Similar to the Federal High Court Rules, it allows for the commencement of proceedings by originating summons in cases involving the interpretation of documents or statutes.
- High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules 2018:
- Order 2, Rule 4: Provides for the use of originating summons in cases suitable for such a procedure, emphasizing its application where there is no substantial dispute of facts.
Procedure
The procedure for commencing an action by originating summons involves several steps:
- Filing the Summons: The plaintiff (applicant) files the originating summons, accompanied by an affidavit that outlines the facts of the case and a written address which shall serve as his argument in support of the application. The summons must state the relief or orders sought.
- Service on the Respondent: The originating summons and supporting affidavit must be served on the respondent (defendant), who may file a counter-affidavit in response. The plaintiff shall upon the service of the defendant’s counter affidavit on him, file and serve his further affidavit and a reply on points of law on the defendant.
- Hearing: The case is usually heard in chambers, and the court primarily relies on the affidavits filed by both parties. Oral evidence is generally not required unless the judge deems it necessary to resolve any factual disputes that may arise.
- Judgment: Based on the submissions and affidavits, the judge makes a determination on the legal issues presented and may issue declaratory or other appropriate orders.
Relevant Case Laws
Several Nigerian cases illustrate the application and principles governing originating summons:
- Olley v. Tunji (2013) LPELR-19934(CA): The Court of Appeal reiterated that originating summons is appropriate where the issues involved are mainly legal, such as the interpretation of documents or statutes, and there are no substantial disputes of fact.
- National Bank of Nigeria v. Ayodele (1993) 1 NWLR (Pt. 271) 285: This case emphasized that where there are substantial disputes of fact, originating summons is not suitable, and the matter should proceed by writ of summons, which allows for a full trial with oral evidence.
- A-G Federation v. A-G Abia State & Ors (2001) 11 NWLR (Pt. 725) 689: The Supreme Court highlighted that originating summons is appropriate for determining questions relating to the construction of statutes or documents.
- Doherty v. Doherty (1968) NMLR 241: This case set a precedent that the use of originating summons is not confined to the construction of documents but can also extend to other matters where a speedy resolution of legal questions is necessary.
Conclusion
In the Nigerian legal system, the originating summons is a vital procedural tool for efficiently resolving legal questions, particularly those involving the interpretation of documents and statutes. Its use is governed by specific court rules, which provide a clear framework for its application. However, its appropriateness depends on the absence of substantial factual disputes, as highlighted by various case laws. Practitioners must carefully consider the nature of the issues at hand to determine whether originating summons is the suitable mode of commencement for their cases.