On whether action bordering on ownership of land can be commenced by originating summons or summary proceedings for possession of landed property
On whether action bordering on ownership of land can be commenced by originating summons or summary proceedings for possession of landed property.
Dada v. Alabi [2020 ] 5 NWLR PT. 1718 at PG 430 – 432.
Summary of the facts:
The appellants were the defendants at the trial court in the action commenced by originating summons by the respondents who were the claimants. The main relief in the claim was for the recovery of the property which the claimants laid claim to as owners.
The appellants (defendants) filed a preliminary objection to the action basically on the premises that the action was wrongly commenced by originating summons. The objection was on the ground that the facts and the circumstances of the case showed that there was so many disputes on the facts before the court and as such, the action could only be properly commenced by a writ of summons and not by originating summons.
The trial court relying on Order 53 of the Lagos State High Court (civil procedure) Rules 2012 held that the summary procedure was applicable in the circumstances since the action was for recovery of possession. Its decision was not based on the facts that there was no dispute in material facts over the land but rather that by Order 53 of the High Court Rules, the instant action could be commenced by originating summons.
The trial court did not only dismiss the preliminary action but also granted the reliefs of the respondent.
Dissatisfied with the judgment of the trial court, the appellants appealed to the Court of Appeal.
Held (Unanimously allowing the appeal):
Per TOBI J.C.A stated as follows:
“Originating summons is a procedure wherein the evidence is mainly by way of documents and there is no serious dispute as to their existence in the pleadings. It is usually heard on affidavit evidence and involves questions of law rather than issues of fact. That is, originating summons is best suited for cases where there are no substantial disputes of facts or likelihood of disputes. It is not an appropriate procedure in application for initiating contentious issues of facts where the facts of the plaintiff leave the matter for conjecture. Originating summons should be used only where the proceeding involves the question of law, rather than disputed facts, even where the facts are not in dispute, the originating summons should not be used, if the proceedings are hostile. Originating summons is the ideal process to commence proceedings where there is no dispute on questions of facts or the likelihood of such dispute, for example, where the issue is to determine questions of construction. The main advantage of the procedure by originating summons is the emphasis on simplicity resulting in the elimination of pleadings. Where it is obvious from the state of the affidavit that there would be an air of friction in the proceedings, then an originating summons is no longer appropriate. A writ of summons would suffice in such circumstances. In the instant case, there was a dispute over the ownership of the land. In the circumstances, the originating summons was not the appropriate procedure to adopt.”
Moruff O. Balogun Esq.
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