Writ of Summons

By Order 3 Rule 1 (1) of the 2009 Rules, Civil proceedings at the trial Court may be commenced by Writ or Originating Summons, etc. As the first Respondent said, most, if not all, the pre election matters that come to this Court are initiated by Originating Summons but the Appellant contends that the writ of Summons is more appropriate.
The distinction between two modes of commencing an action boils down to whether there is a serious dispute as to facts involved.
Where there is a serious dispute as to facts, a Writ of Summons must be issued. In other words, where it is evident from the Affidavit evidence before the Court that there would be "an air of friction" in the proceedings, an Originating Summons is no longer appropriate – see NRC V. Cudjoe [2008] 10 NWLR (Pt.1095) 329 and Famfa Oil Ltd. V. A.-G. Fed. (2003) 18 NWLR (Pt. 852) 453, where this Court held-
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 a declaration of his interest – – It is a procedure where the evidence in the main is by way of documents and there is no serious dispute as to their existence in the pleading of the parties to the suit. In such a situation, there is no serious dispute as to facts but what the Plaintiff is claiming is the declaration of his rights. lf there are serious disputes as to facts then a normal Writ must be taken out not Originating Summons Doherty v Doherty (1968) NMLR 241.

The law is well established that it is the plaintiffs case that determines the cause of action filed in Court. In order to ascertain a cause of action, the immediate materials a Court should look at are the writ of summons,and the averments in the statement of claim. See Ossai V. Wakwah (2006) 4 NWLR (Pt. 969) 208 at 229. Diapianlong v. Dariy (2007) 8 NWLR (Pt. 1036) 332; Ejiro V. Idris (2006) 4 NWLR (Pt. 971) 538 at 560 – 561.