As embodied by a plethora of decided cases, it is not sufficient for a person to merely know that his right guaranted under the Constitution or any other substantial law, has or will be violated. Such litigant must be aware of the proper way to bring the matter to court. You don’t just appear and mention for instance that, X my employer (who is a Christian) has sacked me because, he discovered I am a Muslim by religion. So court order him to pay me damages in lieu of his violation, of my right against discrimination guaranted under S. 42 of the Constitution Federal Republic of Nigeria 1999. There are procedures that must come before , that submission. The 4 methods of commencing trial under Nigerian law includes :
The originating summons
The writ of summons
The originating process
Notice of appeal
It must be noted that this document must be served on the other party. It can be served through any means as expedient or necessary. May be served personally on the defendant,in his last know address, his office, news paper or public place, where the matter relates to a public officer or state. Where the plaintiff who commenced the action, can lead before a court, sufficient proof that the defendant in the case has been properly served. Trial begins in the presence, or absence of the defendant when he fails to enter appearance within 42 days of receiving service of documents ,in informing him of the case against him, Mandating him also to come and defend the case against him. In ECOTRADE LIMITED v. ALHAJI (CHIEF) SIKIRU ALABI MACFOY & ORS(2015) NCLR 7403 (CA) The 1st Defendant (former chairman of the sold companies) to the suit entered appearance and filed his pleadings. However, the other defendants after being served did not respond. On the 29th October, 2003, the trial court enter judgment in the sum of N42,585,000.00 against the 2nd -8th Defendants in default of appearance and defence. Our goal here, is to inform the reader of what method is appropriate to Commence certain matters in court.
WRIT OF SUMMONS
This is the appropriate method used to Commence actions where hostilities among parties are involved or expected . Hostilities here, speaks of situations where the facts alleged in the matter is unsettled , and each party defendant or even the plaintiff has his own. Conception of the facts that lead to the dispute before court. Matters commenced through writ of summons often, take time to be heard and determined. Because it involves examination of witnesses,filing pleadings examination of whether the reliefs sought after by parties have been plead. Where facts are not settled or are in dispute, that matter must be commenced by writing of summons.
My Lord Mohammed JSC in SIGMA ENGINEERING & CONSTRUCTION Limited v. NIGERIA AIRWAYS LIMITED & ORS.(2013) NCLR 1337 (CA) held that – “although the merits of the originating summons as a way of initiating actions lie in the fact that proceedings commenced thereby are very expeditiously determined, care must be taken to use such proceedings only on resolving questions of law or construction of instruments made in exercise of powers under the law…. The dispute in the present case between the parties which dispute centred on the payment of arrears of rents and mesue profits….is obviously not suitable to be initiated by means of originating summons. Not only that the facts in issue are highly in dispute….the proceedings are not only likely to be contentious but also extremely hostile. To this end, the court below was quite right in holding that the proceedings ought not to have been initiated by originating summons…..”
Similarly in KEYAMO VS. HOUSE OF ASSEMBLY (2002) 12 S.C. (Pt. 1) 190 Per Iguh JSC. It follows therefore, that when the proceedings are hostile, the disputes are substantial, material and affecting the live issues in the case, it would not be proper to commence the Suit by Originating Summons. See PAM VS. MOHAMMED (2008) 16 NWLR (pt. 1112) 1; OBA ADEYALU II VS. OBA OYEWUNMI (2007).
ORIGINATING SUMMONS
This are used to Commence matters, where the facts of a case are not in dispute. Order 2 Rule 2 (a) and (b) of the Federal High Court (Civil Procedure) Rules 2000 “Now, Order 2 Rule 2 (a) and (b) of the Federal High Court (Civil Procedure) Rules2000, then applicable to the suit, provides: – Order 2 rule (2) Proceedings may be begun by Originating Summons where – (a) the sole or principle question at issue is, or is likely to be one of construction of written law, or of an instrument, or any deed, will, contract or document or some other question of law; or (b) there is unlikely to be any substantial dispute of fact.
From the above, it is clear that when a Suit is principally about the construction of written law, instrument, deed, will, contract, document or some other question of law, or where there is no likelihood of the facts to be in dispute, the employment of Originating summons will be the appropriate method of commencing the suit. It is employed, when the action is friendly, where the parties agree on the facts and only seek for an interpretation or directive from the court. In such a scenario, the facts do not play a central role. courts should not go into the substantive issue where inappropriateness of using Originating Summons for disputed facts is likely to be disputed “In ADYELU VS. OYEWUNMI (Supra), (KATO VS. CENTRAL BANK OF NIGERIA 9 NWLR (Pt. 214) 126 and PPA VS. PANALPINA. Matters relating to election petition, should be commenced by originating summons, where it is premised on whether a provision of Electoral act has been violated. Where it involves allegation of fraud, corruption, election Mal practices it ought to be commenced by writing of summons..
It is important to note, that in an action commenced by originating summons, no witness will be heard orally, or pleadings made. Only Affidavits (written statements made on oath) of witness will be required.
NOTICE OF APPEAL
Drawn from the desatisfaction of a party to a suit, with the decision of a trial court. In exercise if the statutory right to appeal guaranteed by the Constitution. A party who intends to appeal the decision of a court, must obtain leave( consent) of the court, to appeal its decision, where the grounds of appeal is premised on facts. However when the grounds of premised on alleged misapplication of any law, no need is required. On obtaining leave, as the circumstances may be. The appealant is required to serve a notice of appeal to the respondent. Stating the grounds of appeal of the trial courts decision. Per OGUNBIYI, J.C.A. It is trite and needless to restate that a party on appeal cannot embark on a case which is different from that led at the trial Court. An appeal emanates from and therefore is a continuation of that which began of the trial Court. Parties of such Court are also bound by their pleadings. An appeal can only be against a decision made by the Lower Court.
ORIGINATING PROCESS : By the rules of courts under Nigerian law, matters such as enforcement of fundamental human right, must be commenced by way of originating process. Originating process unlike the other methods of commencing civil trial refers to every and any document needful at trial. Simply means a parties brief, that is all documents including : written statements of witnesses on oath, list of witness, pleadings the statement of claim, statement of defence, motion documents, list of documents to used at the trial, letters or correspondence between parties before trial, receipts etc. This are al a part of the originating process.
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i e trial, receipts “In MOBIL PRODUCING (NIG) UNLTD VS. LEASEPA (2002) 18 NWLR (PT.
ii See High court of Enugu civil procedure rules , cap 92 Volume under S. , 66(2) , then a notice of intention to bring an action against the State or a public officer can be served in the same manner processes in a pending Suit against the State or public officer is se rved . See also GODWIN C. AZUBUIKE & ANOR. V. GOVERNMENT OF ENUGU STATE & ANOR. (2013) NCLR 1532 (CA) , ALHAJI HASSAN BARAU (2014) NCLR 4591 (CA)
iii Proof of service may be ALHAJI ABDULAZEEZ DANMUSA v. deemed furnish where, an affidavit of service deposed t o by the person effecting the service, setting out the fact, place, mode and date of service and describing the process or document served is prima facie proof of the matters stated in the endorsement or affidavit – Martin Schroder & Co v. Major & Company (Nig) Ltd (1989) 2 NWLR (Pt 101) 1 at 11 and Okoye V. Centre Point. Merchant Bank Ltd (2008) 15 NWLR (pt 1110) 335.” Per ABIRU, J.C.A. (P. 16, paras. C-F), ALHAJI ABDULAZEEZ DANMUSA v. ALHAJI HASSAN BARAU (2014) NCLR 4591 (CA) iv MOHAMMED v. HUSSEINI [1998] 14 NWLR (PT. 584) 108; UTC (NIG.) LTD. v. PAMOTEI [1989] 2 NWLR (PT. 103) 244.” Per OBASEKI-ADEJUMO, J.C.A. (Pp. 31-32, paras. E-C) v See the case of Ikweki v. Ebele (2005) All FWLR (Pt.257) 1401
