CIVIL PROCEDURE — Judgment and Orders — Wrong Commencement of Action — Proper Order Where Action Wrongly Commenced by Originating Summons
Ratio Decidendi
Per Akintan, JSC, in Osunbade & Ors v. Oyewunmi & Ors (2007) NLC-123-79-2002(SC) at p. 12; Paras A–C:
"The proper order a trial court should make where it finds that the action before it was wrongly commenced by way of originating summons is to order pleadings and not to dismiss such action or pronounce on the merit of the case."
Explanation / Scope
Where proceedings are commenced by the wrong originating process (e.g., originating summons instead of writ of summons), the court should not dismiss the action or determine it on the merits. The procedural defect is curable by ordering that pleadings be filed so that the matter can be properly tried on the merits. Dismissal would be too harsh a sanction and would deny the parties their day in court. The principle ensures that procedural irregularities do not defeat substantive justice.