An originating process is the one that initiates a suit; it is the process whereby a litigant who has a claim against another or others presents his grievances before a court or tribunal for redress. The originating process confers jurisdiction on the Court to entertain an action.

Therefore, it is the means through which Court proceedings are commenced, and includes the process by which a cross-claim is made. It is thus, the mode of commencing Court proceedings.

The validity of the originating processes in a proceeding before a court is fundamental as the competence of the proceeding is a condition sine qua non to the legitimacy of any suit or validity of any matter or action. Consequently, any failure to initiate or commence a proceeding with a valid originating process, be it a writ of summons, originating summons or originating motion, as the case may be, deeply goes to the root of the suit or action. Any consequential decision likely to emanate therefrom is liable to be set aside as being incompetent and a nullity. Such an issue can be raised at any time and it can never be alien to the proceedings. Since the action was not initiated or commenced by due process of the law by failure to fulfill a condition precedent for its competence and validity in law, the trial court and appellate court, lack the requisite jurisdiction to adjudicate over it. See; Buhari v. Adebayo (2022) 13 NWLR (Pt. 1848) 533, SC.

Originating Summons is one of the modes of commencing a civil action and an action is commenced by an Originating Summons in the following situations;

  • It is required by a statute, or
  • A dispute which is concerned with matters of law, or there is unlikely to be any substantial dispute of fact.

Originating Summons is best suited for cases where there are no substantial disputes of facts or likelihood of facts. It should only be applicable in circumstances where there is no dispute on questions of facts or even the likelihood of such dispute.

Originating summons should not be used to initiate a suit in which there are contentious issues of fact. Where the affidavit of the Plaintiff leaves matters for conjecture, and where it is obvious from the state of the affidavit that there would be an air of friction in the proceedings, it is not appropriate.

However, a writ of summons would suffice in such circumstances. Thus, it should be used only where the proceeding involves the question of law rather than disputed facts. Even where the facts are not disputed, originating summons should not be used if the proceedings are hostile. See; Ari v. Yerima (2023) 15 NWLR (Pt. 1906) 1, SC, and Global Fleet Oil & Gas Common Nig. (Ltd). v. Orok (2021) 1 NWLR (Pt. 1758) 451, CA.

An Originating Summons cannot be used or resorted to where the affidavit in support thereof involves allegation(s) of crimes. This is because every allegation of crimes requires proof beyond reasonable doubt and pleading of the particulars thereof. See; S.138(2) of the Evidence Act. See also, APC v. Sheriff & Ors (2024) 2 NWLR (Pt.1921) 49, SC. The Court of Appeal in Shehu v. Ahmed (2023) 27 NWLR (Pt. 1888) 27 at 44, paras. F-H, Per Uwa, J.C.A held; “The originating summons procedure is adopted where there is a need to interpret the provisions of a document where the facts are not in issue. Originating summons is usually used when what is in dispute is the construction of documents or interpretation of the law in respect of which pleadings and oral evidence are unnecessary, where there are no disputes as to facts between the parties. it is used where questions of law are involved rather than disputed issues of facts. Akinremi v. Suleiman (2022) LPELR 56903; Macfoy v. Chola (2022) LPELR 56982; Unilorin v. Fadipe (2017) LPELR 45649”

The fact that it is confined to cases where special statutory provisions exist for its application and it should not be used to commence hostile proceedings where the facts are in dispute cannot be overemphasized.

LEGAL TIPS is anchored by Ms CIA Ofoegbunam, an Abuja-based lawyer who is passionate about legal practice. LEGAL TIPS offers quick hints on substantive law, as well as rules of practice and procedure, and serves as a handy reference guide to lawyers, especially in court. Published on a weekly basis, the LEGAL TIPS Series is CIA’s modest contribution to legal development in Nigeria.

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