ACTION – ORIGINATING SUMMON(S) – Whether Order 3 Rule 8 of the Rivers State High Court (Civil Procedure) Rules, 2010 mandates an applicant to file a verifying affidavit alongside an originating summons

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“It was the contention of the appellant’s counsel that the Court below erred to have held that the appellant’s suit was incompetent by reason of the failure of the appellant to file a verifying affidavit alongside his originating summons. Counsel for the 2nd respondent, expectedly, supported the decision of the Court below in this regard and went further to furnish this Court at paragraph 4.41 of the 2nd respondent’s brief of argument, the particular Order of the Rules of the trial Court which mandated the appellant to file an affidavit of verification alongside his originating summons. Order 3 Rule 8 of the Rivers State High Court (Civil Procedure) Rules, 2010 provides for commencement of an action vide originating summons. Order 3 Rule 8 provides as follows: “(1) An originating summons shall be in the Forms 3, 4, or 5 to these Rules, with such variations as circumstances may require. It shall be prepared by the applicant or his Legal Practitioner, and shall be signed, stamped and filed in the Registry, and when so signed, stamped and filed shall be deemed to be issued. (2) An originating summons shall be accompanied by; (a) an affidavit setting out the facts relied upon; (b) all the exhibits to be relied upon; (c) a written address in support of the application. The person filing the originating summons shall leave at the Registry sufficient number of copies thereof together with the documents in sub-rule 2 above for service on the respondent or respondents.” (Italics mine for emphasis) From the aforementioned provisions of the Rules of the Rivers State High Court (Civil Procedure) Rules 2010, I rather find it strange how the Court below came to the conclusion that the appellant was required to file an affidavit of verification alongside his originating summons. The Court below at page 856 of the record of appeal held as follows: “On whether the action of the 1st respondent was initiated by due process of law or whether the condition precedents were followed before the institution of the action. Firstly, it is true that the 1st respondent’s suit was not accompanied with affidavit of verification.” The position of the law is that rules of Court must prima facie be obeyed and if there is non-compliance with the rules, the noncompliance must be explained and if not explained, then there will be no basis upon which the indulgence of the Court can be granted or predicated. However, it would be wrong for the Court and parties to import into or expand the Rules of Court to include requirements or procedure not contained in the Rules except where such Rules of Court are amended or replaced by due process of law. Even where the appellant did not file an affidavit of verification as rightly noted by the Court below, the appellant had no duty to do so by virtue of Order 3 Rule 8 of the Rivers State High Court (Civil Procedure) Rules 2010 contrary to the contentions of learned senior counsel for the 1st respondent and counsel for the 2nd respondent. On this note, I hold that going by the aforementioned provision of the Rules of the trial Court, the appellant was not required or mandated to file a verifying affidavit alongside his originating summons. The only affidavit required of him was an affidavit setting out the facts relied upon.” Per ADAMU JAURO, JSC in AGUMA v. APC & ORS (2021-LCER-40458-SC) (Pp 46 – 48 Paras A – F)

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