By Carrington Osarodion Omokaro, Esq
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Both from our training at the Nigerian Law School and from the study of civil procedure at the university, it is settled that there are four recognised ways of commencing an action before the High Court, namely: Writ of Summons, Originating Summons, Originating Motion/Application, and Petition.
Ordinarily, a Writ of Summons is used where the facts are contentious and likely to be in dispute, while Originating Summons is employed for the interpretation of documents or statutes, particularly where the facts are not in controversy, with the parties in both instances designated as Claimant and Defendant. Originating Motion/Application and Petition, on the other hand, are used where the enabling law specifically provides, with parties designated as Applicant/Respondent and Petitioner/Respondent respectively.
This may appear basic. However, it becomes necessary to restate these principles in view of a recurring issue in practice.
It is not uncommon to see actions commenced by Originating Summons being met with a Preliminary Objection on the ground that the matter ought to have been commenced by Writ of Summons. The argument is usually framed as a failure to comply with laid down rules and procedure, thereby robbing the Court of jurisdiction.
In some cases, trial courts have accepted this argument and proceeded to strike out such suits. However, with respect, I am of the opinion that this does not represent the correct position of the law.
The use of Originating Summons in place of a Writ of Summons, without more, does not raise an issue of jurisdiction.
In the course of my research, and also drawing from practical experience, I have come to the view that such a situation does not, in truth, raise an issue of jurisdiction. It is this position that has informed the writing of this article.
For a proper appreciation of this position, two phrases become important and will be considered shortly, namely: “Jurisdiction” and “Judicial Powers.”
Jurisdiction and Judicial Powers
Jurisdiction and Judicial Powers may seem the same but they are actually different. When you are able to appreciate the distinction, then most likely you will be able to appreciate my opinion.
Halsbury’s Laws of England, Vol. 10, 4th Edition defines Jurisdiction as the authority which a court has to decide matters that are litigated before it or take cognizance of matters presented in a formal way for its decision. A synonymous definition was also given in the case of United States v. Cotton, 535 U.S. 625, 630 (2002).
On the other hand, Judicial Power is the power of a court to make certain orders and decisions in the matter before it. It is apposite to state that judicial power can only be exercised where the court has jurisdiction. Where a court has no jurisdiction with respect to a matter before it, the basis for the exercise of any power with respect to such matter is also absent.
For ease of understanding, this may be put in context as follows: it is trite that issues bothering on declaration of title to land are vested in the State High Court. Hence, when an issue bothering on declaration of title to land comes up, it is the State High Court that will have “jurisdiction” to entertain the matter. You will also see applications for injunctions being brought, and the court may make an order for the grant of an interlocutory injunction pending the hearing and determination of the substantive suit. That act of making an order is the court exercising its judicial power. Even the Constitution of the Federal Republic of Nigeria, 1999 (as amended) recognizes and provides for judicial powers:
6(1) – The judicial powers of the Federation shall be vested in the courts to which this section relates, being courts established for the Federation.
The distinction between jurisdiction and judicial powers is further demystified by the Apex Court decision in Ajomale v. Yaduat (No. 1) (1991) 5 NWLR (Pt. 191) 257. For those who may not have the report with them as at the time of reading this piece, the case involved an application brought by the Appellant at the Supreme Court with respect to an order made by the Lagos State High Court. The prayer inter alia sought was “An order suspending the injunction made by the High Court of lagos State (llori J) on the 18th December, 1987 pending the determination of the appeal lodged herein against the decision of the Court of Appeal dated the 12th May, 1989 and for such further or other order or orders as the Court may deem fit to make in the circumstances.”.
The Apex Court per Karibi-Whyte, J.S.C. stated at page 264 para A-B as follows:
“It is quite clear from the words of the prayers sought and particularly the words underlined, that this court is being called upon to exercise jurisdiction over the decision of the High Court by staying execution of orders made by that court This is a jurisdiction constitutionally vested in the Court of Appeal by section 219 of the Constitution 1979 to the exclusion of any other Court of law in Nigeria.”
On the distinction between Jurisdiction and Judicial Powers, he further stated at page 264, paras. D-F as follows:
“ Mrs. Obe has invited this court to exercise the powers which the Court of Appeal could have exercised if it was hearing the matter. I think this is an error emanating from confusion of the exercise of power with the question of exercise of jurisdiction. Where a court has no jurisdiction, with respect to a matter before it, the juridical basis for the exercise of any power with respect to such matter is also absent. This is because power can only be exercised where the court has the jurisdiction to do so. – See Bronik Motors Ltd v. Wema Bank Ltd (1983) 6 S.C. 158, (1985) 6 NCLR 1. Jurisdiction is not to be equated with powers. Whereas jurisdiction is the right in the Court to hear and determine the dispute between the parties, the power in the Court is the authority to make certain orders and decisions with respect to the matter before the Court. This is clearly implied by the provisions of section 6 of the Constitution 1979 which prescribed the powers of the Courts and in Chapter VII on the Judicature, where the jurisdiction of the Courts have been prescribed in sections 212, 213, 219, 220, 230, 236, 242, 247, 250 of the Constitution 1979.
Since the appellate jurisdiction of this Court has been excluded by section 219 of the Constitution 1979, vested in the Court of Appeal we cannot exercise any of the powers vested in us by the Constitution which we could have exercised had we the requisite jurisdiction.- See Uhunmwangho v. Okojie (1989) 4 NWLR (Pt.122) 471; Jadesimi v. Okotie-Eboh (1986) 1 NWLR (Pt.16) 264.”
The Rationale for my thoughts
Now that the distinction between Jurisdiction and Judicial Powers is clear, let me relate it to the subject matter of this article. Several cases have gone up to the Apex Court on the propriety of a suit instituted by Originating Summons which ought to be commenced by Writ of Summons. The pronouncement of the Apex Court is that in such instance, the Court should order pleadings to be filed.
In the case of Adeyelu II v. Ajagungbade III (2007) 14 N.W.L.R. (Part 1053) 1 at 16 Akintan JSC held as follows
“…Similarly, I believe and hold that the proper order a trial court should make where it finds that the action before it was wrongly commenced by way of originating summons is to order pleadings and not dismiss such action or pronounce on the merit of the case.”.
In Atago v. Nwuche & Ors (2012) LPELR-19656(SC), the Apex Court per SULEIMAN GALADIMA, JSC held as follows:
“The General Principle of Law as I understand it is that where the Court comes to the conclusion that the action ought not to have been commenced by originating summons, it shall proceed to order pleadings. Where however nothing will be achieved by an order for exchange of pleadings, an order for pleadings will not be made. This is the current judicial thinking as stated by the Supreme Court in Emezi V. Osuagwu (2005) 12 NWLR (Pt.939) pg. 340 at 347.”
One point is evident from the various pronouncements of the Apex Court: the Court has consistently recognized and reaffirmed the power of trial courts, where an action is wrongly commenced by Originating Summons, to Order pleadings rather than strike out the suit. This unequivocally means that such a situation is not an issue of jurisdiction. If it were an issue of jurisdiction, as some lawyers will postulate, and having earlier stated that a court can only exercise judicial powers only where it has jurisdiction, the Apex Court would not have recognised the powers of courts to order the filing of pleadings. Therefore, since courts, when faced with such situations, are vested with the power to order pleadings, it follows that such a situation is not one that affects jurisdiction ab initio.
Even on the issue of non-compliance with condition procedure, I am of the view that such non-compliance, if at all, does not affect the jurisdiction of the court. It is merely non-compliance with the rules of court. Moreover, the Rules of Court themselves support this position. Edo State High Court (Civil Procedure) Rules, 2018 and the High Court of the Federal Capital Territory Civil Procedure Rules, 2025.
Order 7 Rule 2 & 3 of the High Court of the Federal Capital Territory CIVIL PROCEDURE RULES, 2025 provides:
“Where at any stage in the course of or in connection with any proceedings there has by reason of anything done or left undone been a failure to comply with the requirements as to time, place, manner, or form, such failure may be treated as an irregularity. The Court may give any direction as it deems fit to regularize such step(s).”
“The Court shall not wholly set aside any proceedings or writ or other originating process by which they were begun on the ground that the proceedings were required by any of these Rules to be commenced by an originating process other than the one used”.
The above provision is in pari materia with Order 5 rule 2 & 3 of the Edo State High Court (Civil Procedure) Rules, 2018.
While the rules of court have made the position clearer, even if they had made it an issue of jurisdiction, it would still not stand. In the words of Niki Tobi, JSC (of blessed Memory) in Buhari v. Inec & Ors (2008) LPELR-814(SC), :
“Rules of Court do not possess any legal capacity to vest jurisdiction in a Court. That is never their function. The function belongs to the Constitution and Statutes; not Rules of Court”.
Like the saying goes, the jurisdiction of any court is granted aliunde – from without and not from within. Courts are creatures of statutes and it is the statute or law creating the court that determines and defines its jurisdiction. Oloba v. Akereja (1988) 3 NWLR (Pt. 84) 508
CONCLUSION
From the foregoing, it is clear that the commencement of an action by Originating Summons instead of a Writ of Summons does not, without more, affect the jurisdiction of the Court. Jurisdiction, as has been shown, relates to the authority of a Court to entertain a matter, while judicial power concerns the authority of the Court to make binding orders and determine the rights of parties.
Where a Court, upon finding that a matter has been wrongly commenced by Originating Summons, proceeds to order the filing of pleadings, it is in fact exercising its judicial power. Such exercise, in my respectful view, puts the issue beyond doubt: jurisdiction was never in question. A Court cannot exercise judicial power in vacuo. Once it validly makes an order in the matter, it necessarily presupposes the existence of jurisdiction. The exercise of such power, therefore, is seamless and reinforces the point that the defect complained of is purely procedural.
It is also settled law that where a lower court is faced with the construction of a rule in pari materia with one already construed by a higher court, the lower court is bound to follow the interpretation placed on that rule by the higher court. See Okonkwo v. Mode (Nig.) Ltd (2002) 14 NWLR (Pt. 788) 588; University of Lagos v. Olaniyan (1985) 1 NWLR (Pt. 1) 156 at 170. In the circumstances, trial courts are under a duty to apply the position consistently laid down by the Supreme Court, namely, that where a suit has been wrongly commenced by Originating Summons, the proper order is one directing the filing of pleadings, rather than striking out the action.
This position is further reinforced by the Rules of Court, which treat such defects as procedural irregularities capable of being regularised, rather than as fundamental defects affecting jurisdiction.
In my respectful view, the practice of treating the use of Originating Summons in place of a Writ of Summons as an issue of jurisdiction is misconceived. It elevates a procedural irregularity to a jurisdictional defect and, in doing so, defeats the ends of justice. The proper approach for courts to follow, as consistently endorsed by the Supreme Court, is to order pleadings where necessary and proceed to determine the matter on its merits.
ABOUT THE WRITER
Carrington Osarodion Omokaro, Esq. is a researcher and a passionate litigation lawyer currently practising in Abuja with the law firm of Ojukwu Chikaosolu, SAN & Co. He began his legal career in Benin City at the firm of Eghobamien & Eghobamien, in association with Perchstone & Graeys, and later joined Olayiwola Afolabi, SAN & Co. before relocating to Abuja, where he continues to build a robust litigation practice.
REFERENCES
- NIGERIAN WEEKLY LAW REPORT
- LAW PAVILLION ELECTRONIC LAW REPORT – PRIMSOL
- HIGH COURT OF THE FEDERAL CAPITAL TERRITORY CIVIL PROCEDURE RULES 2025
- EDO STATE HIGH COURT (CIVIL PROCEDURE) RULES, 2018
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