CIVIL PROCEDURE — Originating Process — Originating Summons — Propriety of Use Where Facts Are in Dispute
Ratio Decidendi
Per Ogbuagu, JSC, in Osunbade & Ors v. Oyewunmi & Ors (2007) NLC-123-79-2002(SC) at pp. 4–5; Paras D–A:
"Originating Summons should only be applicable in circumstances where there is no dispute on questions of fact or even the likelihood of such dispute. Application by Originating Summons should never be a substitute for initiating Contentious issues of fact. Where the affidavit of the plaintiff leaves matters for conjecture originating summons is not an appropriate procedure."
Explanation / Scope
The test for whether originating summons is appropriate is whether there is a real or likely dispute of fact. Even the likelihood of a factual dispute makes the procedure inappropriate. The plaintiff cannot choose originating summons to avoid the rigours of pleadings and trial where the case inherently involves contested facts. If the affidavit evidence shows that facts are not clear and require investigation, the court will decline to proceed and will order that pleadings be filed.