SUMMARY JUDGEMENTS IN NIGERIA

A summary judgement is the one entered in favour of the plaintiff or claimant summarily without going through a full trial that is hearing of evidence and written address by counsel. The judgement is based on the writ of summons, the statement of claim and sometimes statement of defence. In some circumstances there may be no pleadings, but just an affidavit by the plaintiff and a counter affidavit by the defendant.

The Judge may on application of the Plaintiff or Claimant at the pre-trial conference or at any other stage of the proceedings give a judgment and such judgment becomes final judgment and can only be set aside on appeal. This is because such judgment is given on the merit for want of defence by the Defendant. Summary judgment is resorted to in circumstances where it is obvious or at least, it appears to the Plaintiff that the Defendant has no defence to the action. This is the distinguishing factor between summary judgment and default judgment which can be set aside by the same court that gave the judgment because it was given in default not necessarily for want of defence. Default judgment applies where the Defendant has failed, neglected and or refused to either enter appearance or file his defence.

There are various types of summary judgments under the rules of Nigerian courts. There is summary judgment based on admission of facts, summary judgment on application of accounts, summary judgment under Order 11 of the Lagos, Enugu and Rivers States’ High Court Rules and summary judgment under the undefended list procedure. A consent judgment is also a form of summary judgment but it differs on the ground that it is agreed on by the parties without adjudication by the court.

Undefended List Procedure (Order 21 of Abuja Rules)

The term “Undefended list” is used under the Abuja High Court (Civil Procedure) Rules. It is one and the same procedure with Summary judgment. Under Order 21 of the Abuja Rules, the undefended list procedure is used only for the recovery of debts and liquidated money demand. The Plaintiff shall at the time of applying for the issuance of the writ of summons, accompany the writ with an affidavit disclosing the fact on which the claim is based and also stating that in his belief, there is no defence to the claim. If the court is satisfied that there are good grounds for his believing so, the court shall enter the suit for hearing in what is called the “undefended list” and mark the writ of summons accordingly. Then, a date shall be fixed for the hearing of the suit. The Rules give the responsibility of being satisfied with the affidavit and entering the suit in the undefended list to the “court”. The word “court”, when used in Rules of courts or in Statutes in regard to functions to be performed usually refers to the Judge or Judges who sit in a court and not the Registrar. The 2004 Abuja Rules actually used the word “Judge” in place of “Court”. This settles any controversy that may have arisen there from.

However, controversy rages as to the mode of applying for the writ to be marked and entered on the “undefended list”. In some jurisdictions, counsel file motion ex parte praying the court to enter and mark the writ “undefended list” while in some others, counsel merely files the writ along with the affidavit, stating the grounds upon which the claim is based. The writ is then marked and entered in the undefended list.

Notice of Intention to Defend

Upon service of the writ of summons and affidavit to the Defendant, if he has a defence to the action; he shall file a notice in writing of his intention to defend the action together with an affidavit disclosing a defence on merit. The above documents shall be filed not less than five days before the date fixed for hearing. However, in practice, the court may grant an extension of time within which to defend upon good cause shown.

Where a Defence is Disclosed

If the court is satisfied that a defence on the merit has been disclosed in the affidavit, the Defendant may be granted leave to defend the action upon such terms as the court may think just. The action shall then be removed from the undefended list to the general cause list. The court may then order pleadings to be filed by the parties or proceed to hear the matter upon affidavits of the parties.

Where there is conflict in the affidavit of both parties, the court must enter the suit on the general cause list. The case would have to be heard in the ordinary way with or without pleadings. It should be noted that where the court transfers the case to the general cause list i.e. grant leave to the Defendant to defend the suit, the Plaintiff cannot appeal against the leave to defend. This is because there is no right of appeal against an order of the High Court granting leave to defend an action.

Judgment in Undefended List

If the Defendant fails to file a notice of intention to defend accompanied with an affidavit disclosing a defence on the merit or the court refuses to grant leave to defend the action, the suit shall be heard as an undefended suit and judgment be entered in favour of the Plaintiff without calling upon him to give oral evidence in proof of his case. Judgment given under the undefended list is a judgment on the merit and accordingly it is a final judgment and not a default judgment. Therefore, it cannot be set aside by the same court that delivered it except on grounds of fraud. Note however that when a suit entered on the undefended list comes to court for the first time, it is for hearing and not for mention.

The summary judgment procedure is available to a Claimant who believes that the Defendant has no defence to his claim. The belief must be honest and not frivolous, hence; the Claimant is required to depose to an affidavit stating the grounds of such belief. In the same vein, for the matter to be transferred to the general cause list, the affidavit of the Defendant must answer the claim and disclose a defence to it on the merit. In other words, a general denial of the claim or a general statement that the “Defendant has a good defence to the claim” is not sufficient for this purpose. Where there is conflict in both affidavits, the suit must be entered on the general cause list. In other words, both the Claimant and the Defendant have the duty to prove their claims and defence to the satisfaction of the court and the court must exercise its discretion judicially and judiciously in the determination of the case.

Summary Judgments under Order 11 (Lagos and Rivers States)

This procedure is used where the Claimant believes that there is no defence to his claim. It may also be used where it will amount to a delay to allow the Defendant to defend the action or where the facts are straight forward and uncontested by the Defendant. At the time of filing, the Claimant shall accompany his writ of summons with the following:

Statement of claim

The exhibit to be relied on at the trial; and

The depositions of his witnesses.

In addition to the above documents, the Claimant shall also file an application for summary judgment, supported by an affidavit stating the grounds for his belief that there is no defence to his claim. Furthermore, he shall file a written brief i.e. arguments in support of the application.

Although the Rules of Court are silent on the mode of bringing the application for summary judgment before the court; however, it is suggested that it should be by motion on notice given that all applications to the court except otherwise required, shall be by way of motion supported by affidavit.

Where the Defendant Intends to Defend

If the Defendant who is served with the processes has a defence to the claim and intends to defend same, he must do so by filing the following documents within the time stipulated for defence:

Statement of defence

Deposition of his witnesses

Exhibits to be relied on; and

A written brief in reply or opposition to the application for summary judgment.

This means that the Defendant is no longer required to file a counter affidavit as was the position under the 1994 Lagos Rules or Order 10 of the 1972 Lagos Rules. All he needs to do is file his statement of defence along with the aforementioned documents within the time stipulated for defence which is 42 days from the day of service of originating process and accompanying documents. The Defendants must also file a reply brief to the one filed in support of the application. Note however, that his statement of defence must disclose a valid prima facie defence on the merit. Where the statement of defence discloses no reasonable defence to the claim, the Claimant shall be ordinarily entitled to summary judgment. That is to say; a statement of defence that discloses no answer to the claim under Order 11 will entitle the Claimant to judgment under the Order.

Where a Defence is Disclosed

On the day of hearing of the application, the Judge shall look at the statement of defence and if it appears to him that the Defendant has a good defence, he shall grant the Defendant leave to defend in which case, the matter will be entered in the general cause list to be tried fully.

Where no Defence is Disclosed

If it appears to the judge that no good defence has been disclosed by the Defendant, he may enter judgment in favour of the Claimant. As discussed earlier, such judgment is a final judgment having been delivered on the merit; it can only be set aside on appeal. Where however, the Defendant fails or neglects to comply with the requirements of the Rules, like failing to file his defence and written brief for instance, the judgment entered thereon would be a default judgment and may be set aside where good cause is shown by the Defendant. It should be noted that the Defendant may disclose a good defence to only a part of the claim. In such circumstances, the Judge may enter judgment in respect of the part to which no defence has been disclosed and grant leave to defend that part to which a defence has been disclosed. It is also noteworthy that where there is more than one Defendant, the Judge may enter judgment against those Defendants who do not disclose a defence to the claim, but shall grant leave to those who disclose a defence. Parties are at liberty to advance oral submissions in elucidation of their written briefs.

Summary Judgment Will Not  be Granted When Defence Raises Triable Issues

For instance in the case of Beloxxi Industries Ltd, Obi Ezeude (defendants/appellants) AND Hwa Tai Industries  (claimant/respondent)

The learned trial judge in the circumstance of this case and as rightly submitted by the learned appellants’ counsel, did err in law in entering summary judgment on an amount, which is being contested and/or disputed by the defendant/appellants. In other words, the learned trial judge should have declined entering summary judgement, this is premised on the finding that triable issue had been raised in defence of the suit by the defendants/appellants therein.

So held the Court of Appeal Holden at Lagos, Nigeria, in a unanimous leading judgment delivered by his Lordship C.B. Ogunbiyi (JCA), J.I Okoro, M.A. Danjuma, (JCA) concurring while allowing the appellant’s appeal.