"...However, that alone is not a substantial ground to declare the action incompetent as done by the trial judge. Even a suit or proceeding wrongly commenced by originating summons may be permitted by the Courts for the parties to carry on as if the suit was carried out by a writ of summons. See DIN V. A.G. FEDERATION (1986) 1 NWLR 471, TAIWO V. OKEOWO (1983) 7 SC 85, KWARA STATE POLYTECHNIC, ILORIN & ORS v. A.O. OYEBANJI (2007) LPELR - 11829 (CA). In the instant case on appeal, whereas the trial judge had found that an originating summons was inappropriate method of commencing the suit, the proper order it could have made in the circumstance is to order the parties to file pleadings and come by way of a writ of summons and not to strike out or dismiss the suit. See EJURA V. IDRIS (2006) ALL FWLR (PT. 318) 646 (2006) 4 NWLR (PT. 971) 538, CHIEF ADEBISI ADEGBUJI V. ACTION CONGRESS OF NIGERIA (CAN) & ORS (2012) VOL. 213 LRCN where the Appellant filed originating summons against the respondent in a pre-election matter while the 1st Respondent filed a counter-affidavit of 24 paragraphs.

The trial Court struck - out the Appellant's case for being incompetent on the ground that the proceeding was hostile as the facts were substantially in dispute. On appeal, the Court of Appeal upheld the decision of the trial Court relying on the authority of Chairman NPC V. Chairman Ikere Local Government (2001) 13 NWLR (pt. 731) 540 at 559 that the conflict in the affidavits of the parties disentitled the Court from determining the Appellant's case. However, on further appeal to the Supreme Court, the Court held that the learned justices of the Court of Appeal were wrong in not ordering that pleadings be filed at the trial in order to effectually determine the case on its merit. The learned trial judge ought to have ordered pleadings to be filed. The Justice in this case could only be done between the parties if all the facts were presented to the Court in formal pleadings and proceedings commenced by a writ of summons rather than by originating summons."

Per ELECHI, J.C.A. IN INCORPORATED TRUSTEES OF CATHOLIC DIOCESE OF EKITI STATE v. AG EKITI STATE & ANOR CITATION: (2018) LPELR-43510(CA)