The cause of action determines the form of the proceedings to be taken in Court. Order 5 r 1 of the Rules of the High Court provides that, subject to the provisions of any written law and of these rules, civil proceedings in the High Court may be begun by :
(a)Writ of Summons (W/S); or
(b)Originating Summons (O/S); or
(c)Originating Motion (O/M); or
However, the above general rule is ‘[s]ubject to the provisions of any written law.’ This means that when a written law lays down the form for the proceedings to be taken, that provision must be followed – for example, divorce petitions and companies winding up petitions, etc.
The above general rule is also ‘[s]ubject to (the provision) of these Rules.’ This means that where the Rules provide for a special mode, that provision is to prevail over the provisions of this order. For example, a charge action under O 83 is to be by writ or O/S and contentious probate proceedings under O 72 r 2 must be begun by writ.
Otherwise, the provisions of O 5 determine the form or the mode of the civil proceedings in the High Court in the prosecution of the plaintiffs’ claims.
A WRIT OF SUMMONS is generally to be used for:
(a) an action in tort, other than a claim based on fraud;
(b) claims for damages for breach of duty and personal injuries;
(c) claims for breach of promise of marriage; and
(d) claims for infringement of a patent.
An ORIGINATING SUMMONS is:
(a) obligatory, in applications to the High Court under any written law;
(b) discretionary, where:
(i)the sole or principal question at issue is the construction of any written law or of any
instrument under any written law or of any deed, contract or other document or of
some other question of law; or
(ii)where there is unlikely to be any substantial dispute of fact (for example, trespass to
An ORIGINATING MOTION is to be used when required by any written law or by the Rules (for example, O 88 r 4). An example of an application which must be made by originating motion is an application for an order to confirm a winding-up resolution.
A PETITION is similarly to be used when required by any written law or by these Rules (for example, O 88 r 5). An example is an application to cancel the alteration of a company’s objects or an application for a shareholder’s relief in cases of oppression.
Writ of Summons and Originating Summons
An action in Court under the Rules of the High Court is adversarial in nature. In other words, it is a contest between two or more parties. Two types of forms of a Writ of Summons are:
(i)Form 2; which is an ordinary writ for service within the jurisdiction of the Court.
(ii)Form 3; which is for service of the writ outside the jurisdiction, which requires the leave of the Court.