Effects Of Summary Judgement

BONA V. TEXTILE Limited.

I. O. UZODIKE

V.

ASABA TEXTILE MILL PLC

SUPREME COURT OF NIGERIA

APPEAL – Right of appeal – Decision of High Court granting unconditional leave to defend an action – Whether appealable – Section 241(2)(a) of Constitution of the Federal Republic of Nigeria, 1999.

CONSTITUTIONAL LAW – Right of appeal – Decision of High Court granting unconditional leave to defend an action – Whether appealable – Section 241(2)(a) of Constitution of the Federal Republic of Nigeria, 1999.

JUDGMENT AND ORDER – Summary judgment – Nature of – Effect oj.

JUDGMENT AND ORDER – Summary judgment – Scope of – Whether can be limited to issues or part of a case.

PRACTICE AND PROCEDURE – Appeal – Right of appeal -Decision of High Court granting unconditional leave to defend an action – Whether appealable – Section 241 (2)( a) of Constitution of the Federal Republic of Nigeria 1999.

PRACTICE AND PROCEDURE – Summary judgment – Nature of – Effect of.

PRACTICE AND PROCEDURE – Summary judgment – Scope of- Whether can be limited to issues or part of a case.

PRACTICE AND PROCEDURE – Undefended list – Placement and hearing of suit thereunder – Procedural steps therefore.

PRACTICE AND PROCEDURE – Undefended list procedure – Where court transfers suit to general cause list – Effect of.

Issue:

Whether the Court of Appeal was right in allowing the respondent’s appeal and in granting its application for part judgment on the basis of an alleged admission of the appellants notwithstanding that the trial court had transferred the respondent’s suit from the undefended list to the general cause list.

Facts:

The respondent sued the appellants under the undefended list procedure. It claimed N5,562,875.72k as debt owed by the appellants. It also claimed interest on that amount of money.

After the appellants were served with the respondent’s writ of summons together with the affidavit in support thereof, they filed a notice of intention to defend the suit. They also filed an affidavit in support of their notice. The respondent, in turn, filed a further affidavit in reply to the appellants’ affidavit.

In its ruling, the trial court considered the court processes filed by the parties and found that the appellants admitted they owed the respondent Nl,415,050.01 and not N5,562,875.72 claimed by the respondent. However, the trial court held that the parties should present oral evidence in the suit. Consequently, the trial court granted leave to the appellants to defend the suit add it transferred the suit to the general cause list for hearing and determination.

After the ruling of the trial court, the respondent filed an application for judgment of N1,415,050.01k on the ground that the appellants admitted owing the amount and that the trial court had so found.

The trial court heard the respondent’s application and delivered a ruling in which it held that it could not reopen the case to grant the relief sought when pleadings had not been filed by the parties.

The respondent was dissatisfied with the refusal of the trial court to enter judgment for the sum of Nl ,415,050.01k in its favour.

The respondent, therefore, appealed to the Court of Appeal. In a considered judgment, the Court of Appeal held that the appellants admitted they owed the respondent Nl ,415,050.01k and that the trial court was wrong when it did not enter judgment for that sum of money in favour of the respondent. Consequently, the Court of Appeal allowed the respondent’s appeal and granted the relief sought by the respondent. The appellants, in turn, were dissatisfied with the judgment of the Court of Appeal and they appealed to the Supreme Court.

In determining the appeal, the Supreme Court considered the provisions of section 241 (2)(a) of the Constitution of the Federal Republic of Nigeria, 1999 which reads:

241 (2) Nothing in this section shall confer any right of appeal-

(a)        From a decision of the Federal High Court or any High Court granting unconditional leave to defend an action.”

Held (Unanimously allowing the appeal):

1. On Procedural steps for placing and hearing suits on undefended list – The procedural steps for placing and hearing a suit on the undefended list are as follows:

(a)        The plaintiff files an application for the issuance of a writ of summons for a claim for liquidated money demand. The plaintiff’s application must be accompanied by an affidavit setting forth the grounds on which the claim is predicated and stating that in the belief of the plaintiff or deponent to the affidavit, the defendant has no defence to the plaintiff’s claim.

(b)        The court to which the applicant’s application is made considers it ex parte, without hearing argument, to determine whether to hear the suit under the undefended list or to transfer it to the general cause list to be dealt with accordingly.

(c)        If the court is satisfied there are good grounds for believing that there is actually

no defence to the plaintiff’s claim, the court enters the suit for hearing in the undefended list. The writ of summons is marked as such and a date for hearing is stated on it.

Thereafter, all of the court processes are served on the defendant, who if he desires to defend the suit, must deliver to the Registrar of the court, a written notice of his intention to defend the suit together with an affidavit disclosing a defence on the merit of the suit.

(d)       However, if after considering the affidavit in support of the defendant’s notice of intention to defend the suit, the court may on the basis of the facts disclosed in the affidavit of the defendant grant leave to the defendant to defend the action upon such terms as the court may think fit. And if the court grants leave to defend the suit, it is automatically removed from the undefended list to the general cause list putting an end to the procedure for summary judgment.

[Ekulo Farms Ltd. v. UB.N. PIc (2006) 4 SCNJ 164; Dange Shuni Local Govt. Council v. Okonkwo (2008) All FWLR (Pt. 415) 1757 referred to.] (Pp. 370-371, paras. G-F)

2. On Whether decision of High Court granting unconditional leave to defend suit appealable –

By virtue of section 241(2)(a) of the Constitution of the Federal Republic of Nigeria, 1999, there is no right of appeal from a decision of the Federal High Court or any High Court granting unconditional leave to defend an action. In this case, the trial court granted unconditional leave to the appellants to defend the respondent’s suit. The appeal by the

respondent to the Court of Appeal was in substance, an appeal against that decision. However, the respondent had no right of appeal against the decision of the trial court. In the circumstance, the Court of Appeal lacked jurisdiction to hear and determine the respondent’s appeal. Consequently, the decision of the Court of Appeal was a nullity.

[NBN. Ltd. v. Weide & Co. (Nig.) Ltd. (1996) 8 NWLR (Pt. 465) 150; Ekulo Farms Ltd. v. UB.N.

Pic (2006) 4 SCNJ 164 referred to.] (Pp. 375, paras. D-F; 375-376, paras. G-A; 377, para, E; 379-380, paras. H-C; 381, paras, A-B)

3.         On Effect of transfer of suit from undefended list to general cause list – A trial court which makes an order of transfer of a case from the undefended list to the general cause list becomes functus officio as to proceeding with the suit on the undefended list. In the instant case, the

trial court having made the order of transfer of the case to the general cause list became functus officio, and could not reopen that matter. (P. 381 ,paras. F-G)

4.On Nature and effect of summary judgment -Summary judgment is a judgment granted on a

claim or defence about which there is no genuine issue of material fact and upon which the movant is entitled to prevail as a matter of law. For summary judgment, the court considers the contents of the pleadings, the motions and additional evidence presented by the parties to determine whether there is a genuine issue of material fact rather than one of law. Summary judgment allows the speedy disposition of a controversy without the need for trial. (P. 372, paras. E-G)

5.On Whether summary judgment can be limited to specific issues or part of case -A summary judgment may be limited to certain issues in a case and may dispose of only a portion of the whole case. (p.373. para. D).