CAN AN ORIGINATING SUMMONS BE USED TO COMMENCE A SUIT WHERE THERE ARE CLAIMS OF FRAUDULENT ACTIVITY?
There are multiple ways of commencing a civil action indifferent courts of first instance, as outlined in the relevant rules of procedure depending on the circumstances of the case.
Now the knotty issue that arises before the court in some instances is whether an Originating Summons can be utilized to initiate a civil action when there are claims of fraudulent activity and conflicting facts in the case.
The above issue was readily visited in the recent decision of the Supreme Court in APC V. BASHIR SHERIFF & 2 ORS (SC/CV/1689/2022). A brief fact of the case is that the first respondent commenced an action by way of Originating Summons, at the Federal High Court against the appellant, second and third respondents alleging fraudulent activities in the supporting affidavit and further affidavit. However, the Appellant raised a preliminary objection bothering on the jurisdiction on the ground that the suit was commenced by the wrong procedure. The trial court granted all reliefs sought by the first respondent under the Originating Summons. Aggrieved by the decision of the trial Court, the appellant appealed to the Court of Appeal (lower court). The lower court affirmed the decision of the Federal High Court. Dissatisfied by the decision of the lower court, the Appellant appealed the decision of the lower court.
In determining the issue, the Supreme Court ruled that one of the indications of jurisdiction is that the lawsuit or action is started through proper legal procedure. Additionally, the Supreme Court noted that an Originating Summons is used to initiate a lawsuit when the dispute involves only the interpretation of documents or laws, and there is no disagreement on the facts between the parties, so pleadings are not required.
Undeniably, the method adopted by the first Respondent was a disrespectful violation of a fundamental principle that the person facing allegations should have the opportunity to confront the accused. This is typically achieved through cross-examination or by challenging and contradicting any witnesses who testify against them.
The Supreme Court stated further that the use of the Originating Summons procedure was fundamentally flawed in initiating a lawsuit based heavily on allegations of various fraudulent acts, misrepresentation, and forgery. These allegations are of a criminal nature and crucial to the first respondent's claims. They must be proven beyond a reasonable doubt, even in civil proceedings, making the Writ of Summons the appropriate means of initiating such proceedings.
The Supreme Court held that the decision made by the trial court and lower court regarding the first respondent's Originating Summons, which was based on disputed statements in affidavits, was wrong and resulted in a miscarriage of justice, and should be overturned. This must be the case, as when the procedure used to address grievances is incorrect, the entire process must be dismissed.
In conclusion, facts serve as the foundation of law. The appropriate procedure is determined by the facts of a case. The first respondent's case failed due to the unforgivable procedure adopted by the leading counsel representing the first respondent.