LEGAL PRINCIPLE: CIVIL PROCEDURE — Originating Processes — Originating Summons — Effect of Registrar signing Originating Summons instead of Judge
PRINCIPLE STATEMENT
The originating summons must be signed by a judge. However, failure of the judge to sign is a mere procedural irregularity if it does not affect the substance of the proceedings. The applicant is not responsible for the court's internal administrative matters.
RATIO DECIDENDI (SOURCE)
Per Belgore, JSC, in Famfa Oil Limited v. A.G., Federation & Anor (2003) NLC-3052002(SC) at pp. 5–6; Paras C–A.
"The very nature of an Originating Summons is to make things simpler for hearing. It is available to any person claiming interest under a deed, will or other written instrument whereby he will apply by Originating Summons for the determination of any question of construction arising under the instrument for declaration of his interest. In such a situation, there is no serious dispute as to facts but what the plaintiff is claiming is the declaration of his rights. In matters where facts are not in issue the originating summons, which must be supported by an affidavit of the facts, must be taken out and will become operative once a judge in chambers has signed it thus giving direction for its service. The applicant is not the one to take the summons to the judge, this is a purely administrative matter of the court's registry which does not involve the applicant. Thus, failure of the Judge to sign the Originating Summons is mere procedural irregularity and it cannot by fig of imagination be placed on the shoulders of the plaintiff."
EXPLANATION / SCOPE
Judge’s signature on originating summons is required, but its absence is a procedural irregularity, not a nullity. The principle applies to originating processes. The plaintiff is not responsible for registry errors. The rule promotes substance over form. The court will not invalidate proceedings for minor irregularities. The principle is well-established.