Nature, Effect Of Summary Judgement

Bona.  V. Textile  LTD.

I.O. Uzodike

V.

Asaba Textile Mill PLC

Supreme Court of Nigeria

SC.11/2007

Mahmud Mohammed, J.S.C) (Presided).

Muhammad Saifullahi Muntaka Coomassie J.S.C.

Sulemiman  Galadima, J.S.C

Olukayode Ariwoola, J.S.C. (Read the Leading Judgement).

Friday, 7th December, 2012

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  lprocedure. 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.o1 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 and 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 N 1,415,050.01 k 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 ofNl ,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 N1,415,050.01k 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 –

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

Held (Unanimously allowing the appeal):

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:  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. 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.

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.

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. Plc (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)

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.