➥ CASE SUMMARY OF:
Oba Adegboyega Osunbade & Ors. v. Oba Jimoh Oladunni Oyewunmi & 2 Ors. (2007) – SC
by PipAr Chima
Supreme Court – SC.79/2002
➥ JUDGEMENT DELIVERED ON:
Friday, May 4, 2007
➥ AREA(S) OF LAW
Mode of commencement;
➥ NOTABLE DICTA
⦿ ORIGINATING SUMMONS CANNOT BE USED WHERE FACTS ARE IN DISPUTE
It is now firmly settled that an Originating Summons, is an unusual method of commencing proceedings in the High Court and it is confined to cases where special statutory provisions exist for its application. It is not advisable, to make use of this procedure for hostile proceedings where the facts are in dispute as in the instant case leading to this appeal. – I.F. Ogbuagu JSC.
⦿ COURT MAY DELVE INTO OTHER ISSUES EVEN WHERE STRIKING OUT A CASE
I agree with the learned counsel for the 1st to 5th Appellants, that sometimes, it is advisable for the court below, to express an opinion on the substantive issue even when it holds that it lacks jurisdiction. – I.F. Ogbuagu JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
I. F. Ogbuagu, JSC
⦿ FOR THE APPELLANT
⦿ FOR THE RESPONDENT
➥ CASE HISTORY
The Plaintiff/Appellant instituted this action via an originating summons before the High Court of Oyo State. The Court heard the suit and ruled in favour of the Appellant.
The Defendant/Respondent appealed the decision of the Court and further stated that the suit ought not to have been commenced by way of an originating summons. The Court of Appeal allowed the appeal and DISMISSED the suit for having been commenced by a wrong summons.
The Appellant has appealed to this Supreme Court on the ground that the suit ought not have been dismissed but sent back to the Trial Court or struck out.
➥ ISSUE(S) & RESOLUTION
I. Whether originating summons was the proper procedure to institute this action, and the Court of Appeal was right in dismissing the suit?
A. I subscribe to the conclusion that the finding of the learned trial judge that the action which was commenced and initiated by originating summons was wrong in the circumstances of the prevailing facts, and that same shall be set aside for being perverse.
B. I allow the appeal, set aside the majority judgment in respect of dismissing the suit instead of striking it out. The order I make therefore, is that the suit be and it is hereby, remitted back to the Oyo State High Court for its being heard de novo by another Judge after the filing and exchange of pleadings by the parties.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)