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.
