the nigerian

SUMMARY JUDGEMENT/ DEFAULT JUDGEMENT

DEFAULT/SUMMARY JUDGEMENT PROCEDURES

in this short write up, i intend to expound on the meanings, procedures and implications of default judgments and summary judgments.
this is to aid students of the law school better appreciate these legal processes.

– summary judgment is a fast track proceeding in court whereby judgment is obtained without the merit and complements of a full trial.
– Default judgment is a judgment entered for a party upon the adverse party’s failure or inability to fulfill and perform a certain task or condition required of such party
– usually, default judgment can be set aside by the same court where the defaulter can show reasonable cause for the default.
– summary judgment is usually given on the merit and substance of the case and therefore can only be set aside on appeal (general rule)
– summary judgment is a procedure usually resorted to upon the BELIEF THE DEFENDANT HAS NO DEFENCE

DEFAULT JUDGMENT (ORDER 10 LAGOS, ORDER 13 ABUJA)
– a default judgment is one that is obtained pursuant to an application by the plaintiff upon the failure or default of defendant to enter appearance or defense.
– according to the rules of court, the court can only set aside such judgment upon an application by the defendant supported with an affidavit stating the following:
1.good cause for the delay in appearance or defense
2.a good defense to the claim
3.such application must be brought within a reasonable time
– in setting aside any default judgment, the court usually considers the following factors as was stated in the case of WILLIAms V. HOPERISING VOLUNTARY FUND SOCIETY:
1.the reasons for the applicant’s failure
2.the time in which the application to set aside judgment was brought
3.whether the party in whose favor the judgment was entered would not be embarrassed upon an order or re-trial
4.whether the applicant’s case is manifestly unsupportable _ usually in abuja

note: IN Lagos, a judgment entered in default of pleadings can only be set aside on grounds of fraud, non-service or lack of jurisdiction.

SUMMARY JUDGMENT (ORDER 11 LAGOS)
– this procedure is used when plaintiff believes that there is no defense to his claim
– upon such belief, the plaintiff must file with his originating process an application for summary judgment via a motion on notice supported by an affidavit of facts stating grounds for such belief
– this procedure can be used for any kind of claim
– procedure:
.front loaded processes
.application for summary judgment
.affidavit and written address
.processes would then be issued and served on defendant

– where the defendant intends to defend, he must file the following:
.statement of defense
.witness statements on oath
.exhibits/documents to relied for defense
.counter-affidavit in support of application
.written address

note: the affidavit in support of the application must show the grounds for the applicant’s belief that the defendant has no defense. it can also be shown the defendant is likely not to dispute the facts.

– where it appears to the court that the defendant, from his statement of defense and counter-affidavit, has a good defence on the merit, the court may thereupon grant leave to the defendant to defend the claims agains him.
– once such order granting leave to defend, the case would be entered into the GENERAL CAUSE LIST
– where it appears to the Court from all the documents placed before the court that defendant has no defencem the court would then enter judgment for the plaintiff
– where the defendant merely showed a defence to certain claims and no defence to other claims, the court would enter judgment for the claims not sufficiently defended.

UNDEFENDED LIST PROCEDURE (ORDER 21 ABUJA)
– this is usually for recovery of debt or liquidated money demand
– demand is ‘liquidated money demand’ where the claim or money demand can be mathematically computed
– procedure:
1.file a writ of summons
2.accompanied by an affidavit of facts stating:
.the facts of the case
.that it is for recovery of debt or liquidated money demand
.the belief that defendant has no defence
3.an application that the writ be placed on the ‘undefended list’ and marked as ‘undefended’
note: failure of plaintiff to disclose the grounds of his belief that defendant has no defence is not fatal to the action. it is for the court to guide itself with processes before it as to whether the defendant may have a defence
see EDEM V. CANNONBALL LTD.

– if the court is satisfied that there is good ground for believing that defendant has no defence to the claim, it would make an order placing the writ in the undefended list. the court would then fix a return date for hearing
– where defendant intends to defend the claim, he must then file an INTENTION TO DEFEND accompanied by a counter-affidavit disclosing his defence.
note: the defendant intending to contend the claims of the plaintiff must file the INTENTION TO DEFEND at least 5 days to the date fixed for hearing
the court on the return date is to determine from all the processes before it whether the defendant has disclosed a defence on the merit
– if there is a defence on the merit disclosed, the court shall remove the matter from the ‘undefended list’ and transfer same to the ‘general cause list’ and order that pleadings be exchanged or order a trial without pleadings.
– if the defendant shows no defence, the court will hear the action as undefended and enter judgment for the plaintiff, so long as plaintiff has successfully established his claim.
– the GENERAL RULE is that judgment under the undefended list can only be set aside on appeal since it is judgment on the merit
– however the exceptions to this general rule where judgement obtained under this procedure may be set aside by the same court include:
.where there is evidence of fraud
.proof of non-service
.proof of lack of jurisdiction of the court
see MARK V. EKE

It is without doubt that there is no limitation of time within which a Court may be called upon to set aside a Default Judgement. It is the Law that a party upon whom a default judgment has been entered against has the right to apply to Court for an Order setting aside such Default Judgment. see OTEJU V. MAGMA MARITIME SERVICE LTD (2000) which is herein attached.

However to be entitled to the enjoyment of the right to have a Default judgment set aside, the Applicant must place before the Court sufficient materials to enable the Court exercise its discretion in setting aside its own Judgement.

To my mind, the relevant considerations upon which the court will base its decision as to whether or not to grant the application to set aside judgment made in default would indeed depend on the exact rule of court defaulted. Whether it be a Default in appearance, Default to file Defence within Time etc, the applicant must place before the Court suffience reasons for the said default.

That been said, the Court has in a plethora of cases laid down general factors or considerations in which an application for the Order of Setting aside Default judgement may be based. see W.I. SPA MILAN V. J.I. NWANYANWU; N.A. WILLIAMS V. HOPE RISING VOLUNTARY FUNDS SOCIETY (find attached).

It does appear that before an applicant can move the Court to set aside a Default judgment, the Applicant need first pray the Court for ‘An Order extending time within which the Applicant may apply to Court to set aside the Default Judgment’. This prayer indeed serves as a precursor to a right to apply to set aside. This is even more necessary where the Default in question is one that relates or pertains to ‘the time to do an act’. See NOGA HOTELS INT’L V. NICON HOTELS LTD. (attached as a Jpeg file).

In light of the above, the following question arises: “if an applicant has a right to apply to set aside a judgment in default, can such right be acquiescenced?” I dare answer this question in the negative. Lapse of time is evidence of acquiescence but lapse of time in itself and by itself alone does not amount to acquiescence. Other factors must exist which make it unjust and against equity. See M. S. ATUNRASE & ORS v. ALHAJI ABDUL MOJID SUNMOLA & ANOR (find attached).

In conclusion, it is clear that no law stops a party from applying to set aside a default judgment. However, a clever advocate may argue the existence of other factors that should bar such application. I’ve seen a lot of authorities where the Court was called upon to set aside a default judgment. In all such cases, no where has the Court considered the Time lag as a factor.

By Udofa, Kingsley David

Udofa, Kingsley David,
@kingsdee
+2348131522819

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