Effects Of Summary Judgement (IV)

The trial court after considering the processes filed by both parties came to the following conclusion:

“The question for my determination is whether the affidavit and exhibits attached to the notice of Intention to defend disclosed a prima facie defence and not whether the defence will succeed at this stage. I must point out here that the defendant admits in paragraph 18 of the affidavit in support of his application that the balance outstanding in his account is N1,415,050.01 and not N5,562,875.72 which is the claim of the plaintiff. The affidavit evidence has not helped the court in resolving the difference. Oral evidence should be adduced by the plaintiff and the defendant hence the need to transfer the suit from the undefended list to the general cause list.

Consequently, the defendant is granted leave to defend this action and this suit is transferred from the Undefended List to the general cause list for hearing and determination.”

There is no doubt, by the order of the trial court transferring the suit from the undefended list to the general cause list, that Order has brought an end to the procedure from summary judgement. See: Ekulo Farms Ltd & Anor V. Union Bank of Nigeria Plc (supra).

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 adduced by the parties to determine whether there is a genuine issue of material fact rather than one of law. This procedural device allows the speedy disposition of a controversy without the need for trail. See: Black’s Law Dictionary, Ninth Edition, page 1573.

It was after the trial court ordered the transfer of the suit from the undefended list to the general cause list having been satisfied that there was a good reason from the processes filed by the defendant for the court to believe that there was a prima facie defence to the plaintiff’s claim, though not necessarily a valid defence on the merits, that the plaintiff filed a notice of motion for an order of the trial court as follows:

“to enter judgment for the plaintiff for the sum of N1,415.050.01 being the amount admitted by the defendants as their indebtedness to the plaintiff and so found by the court”.

It is necessary to point out here that before the trial court took a decision on the defendants’ notice of intention to defend, the plaintiff filed a further affidavit of 7 paragraphs to the affidavit in support of the notice of Intention to defend, the plaintiff filed a further affidavit of 7 paragraphs to the affidavit in support of the notice of Intention to defend the claim. The facts and affidavit evidence contained therein were considered by the court along with those deposed to in the affidavit of the defendants. It is noteworthy, that the issue of admission of part of the claim by the defendants was not raised. I am, therefore, of the view that the trial court can no longer try the same case on the affidavit evidence it had earlier considered and ruled upon to transfer the action from the undefended list to the general cause list to give a partial summary judgement to the plaintiff. This is “a summary judgement that is limited to certain issues in a case and that disposes of only a portion of the whole case”. See, Black’s Law Dictionary, Ninth Edition, P.1573. as I stated earlier, the transfer of the action to the general cause list from undefended list has brought an end to the procedure for summary judgement and any application for such is incompetent and should be so dealt with.

After due consideration of the plaintiff’s application for judgement, the trial court came to the conclusion, inter alia, as follows:

“This court having ruled, and transferred this case to the general cause list … cannot go back and by what ever means or name or rule try to reopen that which is closed”.

In my respectful view, the trial court was right to have declined jurisdiction or competence and dismissed the application for judgement.

It was the dismissal order of the application that led to the appeal to the court below, which held differently. The court below relied on the case of Msheshe General merchant Ltd. V. Nigeria Steel Products Ltd. (1987) All NLR 309 at 319, (1987) 2 NWLR (Pt.55) 110.

Rightly relying on the above, the court below opined that that is the position of the law. And held further as follows:

“The learned trial Judge having transferred this suit from the undefended list to the general cause list, the appellant was at liberty to ask for part payment of the amount claimed in the summons if there was an admission by the respondents of indebtedness of part of the sum so claimed”.

However, the situation in the above case is not the same with the case on hand. That case was fought on pleadings. The narrow issue in the appeal was as to the binding nature of a solemn admission made by counsel on behalf of his client, before pleadings were served. The court had ordered parties to file pleadings. The Plaintiff filed its statement of claim but this had not been served on the defendant when its counsel admitted on behalf of his client to be owing part of the amount claimed but that a part had also been paid by cheque. The statement of claim filed did not contain the admission and the statement of defence subsequently filed did not contain the admission. The trial court dismissed the case in its entirety and the court below reversed the decision. On appeal to this court, the court held at p. 120, paras. B-C as follows:

“(1) Where, as in the instant appeal, the claim is for a definite sum alleged owed by the defendant, and the defendant admits owing part of this sum, no difficulty will, or should arise in the court entering judgement for the sum admitted leaving the balance to be contested.

In such a case, the judgement could be entered upon an oral application to the court provided that the court, on its own discretion, may, having regard to the circumstances of the case, grant the application and enter judgement there and then, or order the applicant to formally move the court. Yet, the admission in such a case is a solemn declaration of indebtedness of the defendant to the plaintiff, in the sum admitted, for the purpose of the remainder of the trial of that action”.

It is interesting to note in the instant appeal, that in the application for judgement by the plaintiff after the suit was transferred to the general cause list from the undefended list, the affidavit in which the alleged or purported admission of indebtedness by the defendant was made was not annexed to the application. Reference was only made to a paragraph 18 of an affidavit which had concluded its own assignment to show that the defendant intended to defend the action.