CASE IDENTIFICATION
EDITORIAL SUMMARY
Editorial — not part of the judgment as delivered
Facts of the Case
The Appellant commenced an action at the High Court of Lagos State by way of originating summons, alleging a number of facts—15 in all—relating to the Governor of Lagos State and the proceedings of the Lagos State House of Assembly. The Appellant sought three declaratory reliefs, an order of perpetual injunction, and a mandatory order in the nature of certiorari to remove certain proceedings held by the Lagos State House of Assembly concerning the Governor of Lagos State.
The Appellant did not file any affidavit evidence in support of the originating summons, whether oral or written, to verify the facts alleged. The trial court considered the originating summons incompetent on that ground and struck it out. The Appellant appealed to the Court of Appeal, which affirmed the decision of the trial court, holding that the reliefs sought by the Appellant could not be granted without a factual basis supported by affidavit evidence.
Dissatisfied, the Appellant further appealed to the Supreme Court. The appeal was heard on 21 October 2002, with the Appellant appearing in person and counsel appearing for the Respondents.
Issues for Determination
ISSUE 1:Â Whether the originating summons was competent in the absence of affidavit evidence verifying the facts alleged.
ISSUE 2:Â Whether the trial court and the Court of Appeal were correct in striking out the originating summons and dismissing the appeal.
Decision / Holding
The Supreme Court dismissed the appeal in its entirety. The Court affirmed the decisions of the Court of Appeal and the trial High Court of Lagos State, holding that the originating summons was incompetent for want of affidavit evidence. The Court awarded costs of N10,000.00 against the Appellant in favour of the Respondents.
Ratio Decidendi / Principles
CIVIL PROCEDURE — Originating Summons — Affidavit Evidence — Requirement for Verification of Contentious Facts “The law is well settled that originating summons may be employed to commence an action where the issue involved is one of the construction of a written law, instrument, deed, will, or other document or some question of pure law is involved or where there is unlikely to be any substantial dispute on issues of fact between the parties.” Per Iguh, JSC, in Keyamo v. House of Assembly, Lagos State & Ors (2002) NLC-122002(SC) at p. 1; Paras C–D.
CIVIL PROCEDURE — Originating Summons — Affidavit Evidence — Failure to File Affidavit Renders Summons Incompetent “Where the reliefs sought in proceedings commenced by originating summons are predicated on facts, such should be brought before the court by affidavit evidence. It is only then that the court can know whether the facts are non-contentious so as to determine the propriety of commencing the proceedings by originating summons.” Per Ayoola, JSC, in Keyamo v. House of Assembly, Lagos State & Ors (2002) NLC-122002(SC) at p. 3; Paras D–E.
CIVIL PROCEDURE — Originating Summons — Affidavit Evidence — Court Cannot Grant Reliefs Predicated on Facts Without Evidence “No reasonable court will grant a relief predicated on the existence of facts without having the facts put before it, it does not matter whether the proceedings were commenced by originating summons or otherwise.” Per Ayoola, JSC, in Keyamo v. House of Assembly, Lagos State & Ors (2002) NLC-122002(SC) at p. 3; Para E.
CIVIL PROCEDURE — Originating Summons — Affidavit Evidence — Contentious Facts Require Verification “Without the verification by affidavit evidence of the facts alleged in the originating summons, the summons was incompetent and was rightly struck out by the trial court.” Per Ogundare, JSC, in Keyamo v. House of Assembly, Lagos State & Ors (2002) NLC-122002(SC) at p. 1; Paras A–B.
Obiter Dicta
Per Ogundare, JSC: “Furthermore, looking at the unverified facts they seem contentious and it is doubtful if the Appellant could have come by way of originating summons. This is only an observation and, in the absence of affidavit evidence, I make no decision on that.” (at p. 1; Paras B–C)
Orders of Court
- The appeal is dismissed.
- The decision of the Court of Appeal, which affirmed the decision of the trial High Court of Lagos State, is affirmed.
- Costs of N10,000.00 are awarded to the Respondents against the Appellant.
APPEARANCES
Counsel for the Appellant(s)
Festus Keyamo (in person)
Counsel for the Respondent(s)
Fred Agbaje (with Mrs. Ayodele, Director, Legal Department, House of Assembly, Lagos State)
Amicus Curiae
None
JUDGMENTS / OPINIONS OF THE COURT
Authoritative judicial text as delivered
Lead / Majority Opinion
— (DELIVERED BY MICHAEL E. OGUNDARE, J.S.C. (DELIVERING THE LEAD JUDGMENT):)
 This is a frivolous appeal. Appellant approached the Court by way of originating summons in which he alleged a number of facts – 15 in all but adduced no evidence, oral or written to verify these facts. The trial court on that ground, among others, considered his summons incompetent and struck it out. On his appeal to the Court of Appeal that Court affirmed that decision.
We see no reason to depart from the concurring decisions of the two Courts below. Without the verification by affidavit evidence of the facts alleged in the originating summons, the summons was incompetent and was rightly struck out by the trial court.
Furthermore, looking at the unverified facts they seem contentious and it is doubtful if the Appellant could have come by way of originating summons. This is only an observation and, in the absence of affidavit evidence, I make no decision on  that.
In conclusion, I dismiss this appeal and affirm the decision of the Court below which, in turn, affirmed that of the trial High Court of Lagos State. I award N10,000.00 costs to the Respondents.
Concurring Opinion(s)
— U. MOHAMMED, J.S.C.:Â
The Respondents’ counsel is not called to make any reply. I agree with my Lord, Ogundare, JSC., that this appeal is devoid of any merit and for the reasons given in the judgment just read the appeal is dismissed with N10,000.00 costs in favour of the Respondents.
— I. IGUH, J.S.C.:
I agree entirely with the judgment just delivered by my learned brother, Ogundare, JSC., and I, too, am of the view that there ought to have been affidavit evidence in verification of the diverse contentious issues at fact set out in support of the appellant’s originating summons before the court.
The law is well settled that originating summons may be employed to commence an action where the issue involved is one of the construction of a written law, instrument, deed, will, or other document or some question of pure law is involved or where there is unlikely to be any substantial dispute on issues of fact between the parties.
P.1
This is not such a case as there are clearly facts averred which are likely to be contentious in the cause. Such facts have not been verified by any affidavit evidence and I think that both courts below are right in holding that the present proceeding is incompetent.
There is no substance in this appeal and I, too, dismiss it with costs as assessed in the leading judgment.
— O. UWAIFO, J.S.C.:
 The appellant filed an originating summons on which he stated a number of facts. He then asked for three declaratory reliefs, an order of perpetual injunction and a mandatory order in the form of certiorari to remove a certain proceeding held by the Lagos State House of Assembly in relation to the Governor of Lagos State, Senator Bola Ahmed Tinubu.
There was no affidavit in support of the originating summons even though there were obviously facts, which the appellant intended to rely on in the nature of evidence. A preliminary objection was taken to the competence of the originating summons and as to the locus standi of the appellant. The trial court upheld the objection and this was found to be correctly decided by the lower court on appeal.
Before this court, the first issue is as to the competence of the action. After listening to argument from the appellant (in person) I had no difficulty in resolving the said issue. There is no doubt that this originating  summons ought to be supported by affidavit. Failure to do so makes it incompetent: see Order 28, RSC of England. I agree with my learned brother, Ogundare, JSC. I too find no merit in the appeal and therefore dismiss it with N10,000.00 costs against the appellant.
P.2
— A. O. EJIWUNMI, J.S.C.:
I have had the privilege of reading the records and the briefs of argument filed by the parties before the hearing.
It is manifest that the main question for determination is whether this action commenced by originating summons is competent. The applicant in support of this summons had deposed to a 15-paragraph affidavit in which he identified himself as a legal practitioner. He also went on to allege that some clients had enquired from him as to what they should understand, and indeed should do in their quest for Governorship position. He then alleged against the governor of Lagos State that he had forged certificates etc. to qualify for the office of Governor.
To support his conferment in office, a five-man panel was set up by the Lagos State House of Assembly. That panel having purportedly examined the allegations, ruled in favour of the Governor in that they held that there was no merit in the several allegations made against the Governor.
The High Court ruled that the summons was incompetent, as there is no affidavit evidence in support of the several allegations. This is affirmed by the Court of Appeal.
I see no merit in this appeal and it is also dismissed by me. I also agree with the judgment just read by Ogundare, JSC. N10,000.00 cost to the Respondents.
— O. AYOOLA, J.S.C.:
In the leading judgment of the Court of Appeal delivered by Galadima, JCA., that court dismissed the appellant’s appeal on the ground, inter alia that a careful perusal of the reliefs sought by the appellant before the lower court clearly revealed that in no way could the trial court award the reliefs without a factual basis through an affidavit presented before the court. The court rejected the appellant’s conclusion that he was simply asking for the interpretation of the Constitution.
P.3
Having looked at the reliefs sought the court below held that the originating summons not being supported by an affidavit was incompetent. I think the court below came to a right decision. Where the reliefs sought in proceedings commenced by originating summons are predicated on facts, such should be brought before the court by affidavit evidence. It is only then that the court can know whether the facts are non-contentious so as to determine the propriety of commencing the proceedings by originating summons. Besides, no reasonable court will grant a relief predicated on the existence of facts without having the facts put before it, it does not matter whether the proceedings were commenced by originating summons or otherwise. The appeal is without merit and is dismissed with N10,000.00 costs to the respondents.
— TOBI, J.S.C.:
 I agree with the lead judgment. There is no need for counsel for the respondent to reply. In view of the fact that the originating summons was not supported by an affidavit, it is incompetent.
The two courts were right in coming to the conclusion that the action was incompetent and therefore a nullity. The appeal is dismissed. I award N10,000.00 costs to the respondents.
P.4
Dissenting Opinion(s)
None
REFERENCES
Research enhancement — dynamically linked