Introduction

Originating Summons has been identified as one of the ways of commencing actions before the Superior Courts in Nigeria. This procedure entails the interpretation of documents, wills, deeds, enactments, or any other written instrument. It also involves the determination of any question of construction arising under the instrument and for the declaration of rights of persons interested. The use of Originating Summons has continued to be adopted in these special causes. It has become known as a special procedure to resolve disputes, particularly where contentions as to facts are quite minimal.

The position of the law with regards to hearing preliminary objections has become sacrosanct under the Nigerian Law. Objections to the jurisdiction of the courts must be heard first, before determining the substantive action. It has been held by the courts that it is either the court of law has jurisdiction or not, and the competency to proceed to determine any dispute, lies squarely within the jurisdictional powers of the court to do so. Consequently, cases commenced by way of originating summons must cross the jurisdictional hurdle, where raised. The fact that the case seeks to interpret documents or instruments alone does not obviate the need to challenge the jurisdiction of courts in such cases.

In deserving circumstances therefore, the courts have held that the hearing of a preliminary objection, before the originating summons, constitutes good law. In some other cases, the Courts have held that hearing both simultaneously would demonstrate the essence of justice, thus balancing the need to resolve the objection with the quick dispensation of justice. The discretion of the Courts is, therefore, imperative consideration in this regard. Claimants wish to have their disputes resolved in good time, especially when the disputed facts are narrow. Defendants on the other hand, may deploy strategies to delay litigation in order to slow down the momentum. In this article, we would be considering the prospects and constraints of taking either of the positions, while reflecting on the new provisions contained under the Rivers State High Court (Civil Procedure) Rules, 2023.

Originating Summons as a Mode of Commencement of Action

• The very nature of an Originating Summons is to simplify areas of disputes in preparation for hearing.[1] It is available to claimants in actions requiring the interpretation of documents, deeds, wills or any other written instrument, for the determination of any question of construction arising under the instrument and for a declaration of his interest.[2] The evidence relied upon is mainly affidavit evidence, with documents annexed as exhibits, thus requiring no serious disputes as to facts. The procedure, therefore, comes in handy to quickly resolve disputes against the use of a Writ of Summons or Petition, which requires the calling of oral evidence. The use of Originating Summons, therefore, seems quite attractive among litigants.
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  [1] Famfa Oil Ltd. v. A.G., Federation [2003] 18 NWLR P. 461 (Paras D-G).

  [2] See, for instance, the provisions of Order 5 Rule 4 (1) of the High Court of Lagos State (Civil Procedure) Rules 2019. Order 3 Rule 6 of the Federal High Court (Civil Procedure) Rules 2019.

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