Default and Summary Judgement

Law suits can go on forever, now that you are on court externship, you’ll see cases that have been instituted as far back as 2009. This is 2017. The court rules provide for quick ways in which the claimant/plaintiff can get judgment while the defendant is forming unlooking, among other things.

Default judgement:

First off let’s determine what kind of cases you can get this kind of judgment:

ALL types of cases except declaratory relief, recovery of premises, matrimonial causes and election petition (e.g it’s not your land it is my land) Obawole v. Williams

It is like a disciplinary judgment against a defendant who refuses to file memo of appearance or file his defence. It can come up after the time within which to do these things under the rules have expired. It is applied for by Motion on Notice supported by affidavit and written address.

Now this kind of judgment is somehow, because the court doesn’t even hear the other guy’s story, hence it can be set aside.

In Abuja the rules say, whether the one in default of appearance or pleadings o, the court can set it aside on such terms as it thinks is just.

In Lagos, the rules say for the one in default of APPEARANCE, that is the guy didn’t even show at all the rules say you look at just terms.

When the guy shows but did not file pleadings, you must prove either

  • Fraud,
  • Lack of Jurisdiction or
  • Lack of Service

 

Who sets aside? The same court where the judgment was given. This means if judgment was given at the High Court, you don’t run to the Court of Appeal, it is not an appeal situation, you are just saying hey, I know I’ve been absent/ doing a sloppy work, but I’m here now, can we talk.

Note: All this default of appearance/pleadings talk is not always the defendant’s fault, sometimes Oga lawyer is still busy preparing the processes and time elapses. So he goes to file motion for extension of time at about the same time you Mr Claimant/Plaintiff went to apply for default judgment. Which one does the court answer first? Well NAISA AND TEAM ASSOCIATES v. NNPC instructs that where there are two motions one to destroy and the other to give life, the court takes the latter first. So the court will listen to the extension of time motion first, let efforts not go to waste, don’t you just love the fairness of the law, *yinmu*

Summary Judgment

In this one, the defendant shows up, he’s not running away but you, Mr Claimant realise, hey this guy doesn’t have anything to say in response to my allegations. So you point out the fact that the defendant has no defence to the suit. It can be applied for at the beginning of the suit or maybe when you’ve read her pleadings and noticed that she’s just rambling.

In Abuja:

The SJ has a fancy name, it is called Undefended List procedure under Order 21 and it is strictly for debts/ liquidated money demands (it is simply a claim asking for a certain sum of money). As a plaintiff you don’t need to draw up an application all you need to do is draft an affidavit in support of your belief that the guy doesn’t have any defence, along with your writ of summons alone. Even if your affidavit does not disclose this much, the judge can still put your matter on the undefended list.

IN RESPONSE: Oga defendant can decide not to do or say anything; if he doesn’t have any defence true true, he can just file his Originating Processes. On the other hand if he wants to defend he will have to file a NOTICE OF INTENTION TO DEFEND (this is the easiest draft in the world, just put the usual heading and in the body say: Take Notice that the defendant intends to defend this suit) within 5 days. In support, an affidavit showing disclosing a defence.

When the court hears the application, it may make a number of order it makes a number of orders:

  • Grant leave for the defendant to defend the action, where he has shown he is not just striking back for fighting sake.
  • Enter judgment in favour of the plaintiff where the defendant has failed to show that he has anything worthwhile to say.
  • Where the defendant shows a good defence to only some of the claims, the court can allow him to defend that part, the rest? Summary judgment!
  • Where there are multiple defendants, and only some of them came correct, those ones can defend, while the rest, summary judgment will be entered against them.

In Lagos Order 11:

Because you usually apply for the SJ at the beginning of the entire case, you usually apply along with the ORIGINATING PROCESSES (click the link for a recap of what those documents are in each jurisdiction from a previous post). So in addition to your Writ of Summons & Co you have an:

Application + Affidavit in Support of the SJ + Written Address. It’s like you are applying for the summary judgment, like you would an interlocutory application.

IN RESPONSE: A defendant may do either of two things, File his own Originating processes while ignoring the application, thereby agreeing to the summary judgment or he may file his originating processes with a counter affidavit (within 42 days), to contest the application, if he intends to defend the suit to the end. In that counter-affidavit Mr Defendant must show that he is just not being disagreeable, he actually has a defence to the claimant’s action. Adebisi MacGregor v. NMB:

When the court hears an application for summary judgment (remember in Lagos it is by application so it is heard properly like any other application, before going on to the main matter of course), it makes any of the orders I listed above for Abuja.

General things to note about Summary Judgment/Undefended list procedure

One big difference between default judgment and summary judgment is that they SJ is actually a final judgment. This means if you as a defendant are trying to go against it, you would have to appeal to the Court of Appeal, not like the DJ where you would apply to the same court that delivered the judgment to SET IT ASIDE. But hol’ up, in Lagos you may set aside the judgment if:

  • As a defendant you have not joined issues with the claimant i.e. responded with your originating processes AND
  • On either the grounds of fraud, lack of jurisdiction or lack of service (yup same as the grounds for setting aside judgment in default of pleadings)

Where the court is gracious enough to allow the defendant defend his case in a full trial, imagine a claimant now appealing against that decision, like, on what grounds possibly? Well, even if the wicked claimant finds the best grounds, such an appeal is forbidden NBN v. WEIDE. So you cannot appeal against an unconditional leave to defend a suit.

There are two levels of contrasts we must make, default judgment vs summary judgment generally, then Abuja vs Lagos

Default judgment Summary Judgment
It is applied for when the defendant FAILS to enter appearance/ file his defence It is applied for when the defendant has NO DEFENCE to the claim
The order can be set aside by the same court, it is NOT a FINAL judgment It is a final and valid judgment that generally, cannot be set aside however:
Lagos Abuja
The judgment CAN BE set aside where the defendant has not joined issues and he shows any of the grounds: Fraud, Lack of Jurisdiction, Lack of Service The judgment CANNOT be set aside ON ANY grounds
It applies to all types of actions except declaratory reliefs

 

 

Lagos Abuja
The application can be made for ALL types of claims Undefended list is for only debts/ liquidated money demands
It is applied for by an application supported by… you should know those by now The application is accompanied by the ALL originating processes There is NO APPLICATION but just an AFFIDAVIT along with the writ of summons
The defendant who wishes to defend replies with a counter affidavit The defendant  who wishes to defend replies with a COUNTER AFAFIDAVIT along with his own originating processes The defendant who wishes to defend replies with a NOTICE OF INTENTION TO DEFEND and AFFIDAVIT

That’s all I can draw up. If you have any more leave it in the comments.

 

 

 

 

 

 

 

 

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