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Home » Articles » The Use of Court Process; Writ of Summons, Originating Summons, Originating Motion and Petition

The Use of Court Process; Writ of Summons, Originating Summons, Originating Motion and Petition

court process

The Use of Court Process; Writ of Summons, Originating Summons, Originating Motion and Petition

Proceedings in courts are usually commenced by the issuance of a court process out of the registry of a court usually known as Originating processes. It simply means that where a statute specifically stipulates the manner of commencing or initiating an action in relation to specified reliefs, then the commencement of an action by such form or process becomes the originating process.

Commencing a suit maybe by Writ of Summons, originating summons, Originating motions and Petition. All these court processes can be likened to a vehicle that brings a matter to a court; it can be very disastrous if a wrong process is drafted to a commence a suit (Fundamental Human rights matters is an exception).

A writ of summons is a court document that commences legal proceedings and informs the defendant that the plaintiff has started civil proceedings against him in a court of law. It requires the defendant to enter an appearance if he wishes to dispute the claim, A writ of Summons is usually drafted when the matter before the court is a contentious matter and requires evidence (see A.P.C

v. Elebeke [2022]10 NWLR (Pt. 1837) 1). Matters relating to contractual agreements, damages, election and declaration of title to property are usually commenced by a writ of summons. The initial stage in starting Civil proceedings will be the issuance of a writ of summons if the claimant/ plaintiff agrees to pursue legal action against the defendant. Additionally, according to the case of Doherty v Doherty [1968] NMLR 241, the supreme Court held that once one is unsure of which court process to draft, he should draft a writ of summons. It should also be noted that it is the duty of the court to issue writ of summons once the plaintiff has paid applied for a writ of summons and paid the appropriate fees (see Ogbuanyinya v. Okudo (1990) 4 NWLR (Pt. 146) 551).

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An originating summons is also one of the originating processes of commencing an action in court. It is basically the opposite of writ of summons; for matters that are straight forward and on point of law like interpretation of documents or written law. An action is commenced by an Originating summons when it is required by a statute or when the dispute, which is concerned with matters of law, is unlikely to be any substantial dispute of fact. An originating summons sets out the questions that the court is being asked to settle. An Originating summons maybe inter partes or Ex- parte of the rules of court. On the basis of filed affidavits, the originating summons is heard. The judges or registrars conduct chamber or open court hearings for originating summons cases. The affidavits submitted in support of or opposition to the originating summons are considered, along with the testimony of the attorneys. Originating summons are used to invoke the original jurisdiction of courts; National Industrial court and the Supreme Court.

The court has made itself clear on when it is appropriate to commence action by originating summons and when inappropriate in the case of Alamieyeseigha v Igoniwari (2007) NWLR (Pt1034) 524 where it stated inter alia that;

Originating summons is appropriate in commencing a suit where there is no dispute on question of fact or the likelihood of such dispute. Where it is obvious from the state of affidavits that there would be dispute in the proceedings, originating summons is no longer appropriate. In such a circumstance, a writ of summons ought to be filed.

The famous case of Machina v. Lawan is a good example of the disastrous effect of iniatiating a contentious matter with an Originating summons.

The main difference between a writ of summons and an originating summons in the opinion of Chitty J in the case of Re Busfield, Whaley v Busfield (1886) 32ChD 123, is that in a writ of summons, the proceedings are in court and there are or may be pleadings while in the originating summons, the proceedings are in chambers and there are no pleadings.

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Originating motion is also one of the originating processes. According to U.B.A v.

Ekpo(2003) 12 NWLR (Pt.834) 332 (P 72, para. F), a suit maybe commenced by originating motion or petition where either by the rules or under any written law, the suit in question is required or authorized to be so begun, but not otherwise. It is used generally for non-contentious matters i.e., matters where the facts are not likely in dispute. Usually, when a statute provides that action be commenced by application but does not specifically provide the procedure, originating motion is used. Originating motion is usually used to initiate matters involving Fundamental Human right and Prerogative writs which are; Habeas Corpus, mandamus, certiorari, prohibition, procendendo and quo warranto. A declaratory relief can be granted under Originating summons or motion where the respondent fails to file a counter-affidavit (see Dagazau v. Bokir Intl co. Ltd. (2011)14 NWLR(Pt. 1267) 261 (P.324, para. C))

Lastly, Petitions is also an originating process and can be used to initiate or commence an action in court. Marital issues is usually commenced by a petition as directed by the matrimonial causes Act. Secondly, dissolution and winding up of companies is also commenced via Petitions. The Court of Appeal was succinct in the case of Pharma Deko Plc v. F.D.C. Ltd (2015) 10 NWLR (Pt. 1467) 225 where it held inter alia that the petition in a winding up action for inability of a company to pay its debt under section 408 of the Companies and Allied Matters Act, 1990 is an originating process. Another matter duly commenced by Petitions is Election matters. Election petition proceedings are sui generis, they are in a special class. Election petition cases have a strict rule of adherence to procedures (any little procedural mistake can be detrimental to the petitioner

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However, an originating process whether writ of summons, originating summons, oiginating motion or petition has to be valid before it can commence an action in any court of law. The court is very lucid in the case of Ofuka v. Izabi Undie (2022) 3 NWLR (Pt. 1818) 488 (P. 504, paras. F-G) where it stated inter alia that;

An Originating process whether writ of summons, originating summons or notice of appeal must be valid in order to confer jurisdiction on a court to adjudicate between the parties on the subject matter in dispute between them.

The law is also certain on who to sign an Originating process. In the case of M.C.C. (Nig.) Ltd v. COSEDA (Nig) Ltd. (2018) 11 NWLR (Pt. 1629) 47 (pp. 58-59, paras. H-A), the court of appeal succinctly held that a law firm is incapable of signing an originating process or any legal document. The court goes on to describe how an originating process is to be signed; The signature of counsel, which may be any contraption; (b) The name of counsel clearly written; The party counsel represents; and Name and address of counsel’s law firm.

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About Author

Bwala Stephen Amos is a year 3 law student at the prestigious Ahmadu Bello University, Zaria. He is an enthusiastic reader, researcher and legal writer. His interest in the legal sphere includes (but not limited to), Corporate law, Commercial law, Arbitration and Tech law.

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