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June 6, 2019 7:55 am
"Order 3 Rule 7 of the Rules of the Federal High Court 2009 relating to commencement of proceedings by originating summons reads thus:
7. Any person claiming any legal or equitable right in a case where the determination of the question whether such a person is entitled to the right depends upon a question of construction of an enactment, may apply by originating summons for the determination of such question of construction and for a declaration as the right claimed.
From the foregoing, formulation of questions for determination is central to the validity of an originating summons in the Federal High Court and it is essential that the particular question of construction between the parties be clearly identified in the body of the summons. In Olley v. Tunji(2013) 10 NWLR (PT 1362) 275 322 Para B-G, (2013) LPELR-283/2012 the apex Court held without equivocation that an originating summons without questions for determination is incurably defective and denies the Court, including this Court on appeal, of jurisdiction notwithstanding that the summons has reliefs spelt out in it and also has in its title the provisions of the enactment sought to be interpreted. The apex Court (Ngwuta, J.S.C., with his learned brothers Onnoghen, J.S.C., later C.J.N, Muntaka-Coomassie, Ariwola and Dattijo Muhammad, J.S.C, in agreement) held thus in that case:
With profound respect, the lower Court grossly erred in its assumption that the mere indication that the originating summons was brought pursuant to named legislations ipso facto raised question or questions on the cited legislations for the Court to interpret. If by mere bringing the originating summons pursuant to Order 3 of the Federal High Court (Civil Procedure) Rules, Section 87 of the Electoral Act, Section 66 of the Constitution and the inherent jurisdiction of the Court, 1st respondent had ignited the interpretative jurisdiction of the Court, how would the trial Court interpret its inherent jurisdiction? The position of the lower Court is tantamount to reading into the process filed before the Court what was not contained therein. The trial Court and the Court of Appeal went their different, but wrong ways the trial Court treated the non-inclusion of questions for determination in the originating summons as mere irregularity whereas the lower Court treated the questions for determination as inherent in the indication of the rules and statutes pursuant to which the originating summons was brought. With respect, each of the lower Courts was wrong for a different reason. As for the trial Court, the questions for construction in the instrument in question is an integral part, a sine qua non, of the originating summons without which the originating summons is incurably defective and not merely irregular. See B.A. Alegbe, Speaker House of Assembly v. M.O. Oloyo (supra)."
–PER B.M. UGO, J.C.A. in UNIVERSITY OF JOS & ANOR VS. VICTOR ARO
APPEAL NO: CA/J/96/2013 LEGALPEDIA ELECTRONIC CITATION: LER[2019]CA/J/96/2013
