Originating Summons

In effect, 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 – see Famfa Oil V. A-G. Fed. (supra).
It is usually heard on affidavit evidence and involves questions of law rather than disputed issues of fact – see Inakoju V. Adeleke (2007) 4 NWLR (Pt. 1025) 423, wherein Tobi, JSC, explained that –
In Originating Summon, facts do not have pride of place in the proceedings. The cynosure is the applicable law and its construction by the Court. The situation is different in a trial commenced by Writ of Summons where the facts are regarded as holding a pride of place and the fountain head of the law in the sense that the facts lead to a legal decision on the matter. That is not the position in proceedings commenced by Originating Summons where facts do not play a central role but an infinitesimal role.
Facts may be inconsequential in proceedings commenced by way of Originating Summons, which are determined on affidavit evidence, but it is important that conflicts in the affidavits are not glossed over – see Gbileve V. Addingi (supra), where this Court affirmed the legal position stated by Nwodo, JCA (of blessed memory), as follows
Where proceedings in a Court are by affidavit evidence, it is important that conflicts in such affidavits are not glossed over. The Court is enjoined to look at the nature of the conflict. When facts are deposed in an affidavit, the purpose of counter-affidavit is to contradict those facts and not merely set up a distinct fact as defence. Where the conflict arising from affidavit and counter affidavit depositions are not on material issues, the Court calling for oral evidence become unnecessary. ln effect, where the conflicts are not material to the case or where the facts are inadmissible in evidence, the Court should not be saddled with the responsibility of calling oral evidence to resolve the conflict – Furthermore where conflicting evidence can be resolved from documentary evidence, the need to call oral evidence becomes unnecessary.
The bottom line, as far as this case is concerned, is the observation – "when facts are deposed to in an affidavit, the purpose of a counter- affidavit is to contradict those facts and not merely set up a distinct fact as defence".

ZAKIRAI V. MUHAMMAD & ORS: LGC(28/4/2017)Q