Effect Of Summary Judgement (II)

Plaintiff or deponent to the affidavit, the defendant does not have any defence to the action. It is entirely the duty of the High Court to which the application is made to consider same ex parte without hearing argument whether to hear the matter under the Undefended List or transfer same to the general cause list to be so dealt with accordingly. Where the court is satisfied, and this is subjective, if I may say so, that there are good grounds for believing that there is actually no defence to the plaintiff’s claim, enters the suit for hearing in the undefended list. The writ of summons will then be marked as such and a date for hearing entered thereon. Thereafter, the entire processes are to be served on the defendant who if he desires to defend the action, must deliver to the Registrar of the court a notice in writing of his intention to defend the claim. The notice must have attached to it, an affidavit disclosing defence on the merit.

However, after considering the affidavit in support of the defendant’s notice of intention to defend the action, the court may on the basis of the facts disclosed in the affidavit of the defendant grant leave to defend the action upon such terms as the court may think fit. Where leave to defend is granted by the court, the action is automatically removed from the Undefended List to the general cause list, bringing an end to the procedure for summary judgment. See: Ekulo Farms Ltd. & Anor v. Union Bank of Nigeria Pic (2006) 6 SCM 78 at 100, (2006) 4 SCNJ 164 (2006) All FWLR (Pt. 319) 895; Dange Shuni Local Government Council v. Stephen Okonkwo (2008) All FWLR (Pt. 415) 1757 at 1775.

It is note worthy that upon deciding to retain the action on the undefended list or transfer same to the ordinary or general cause list, as a matter of fact, both parties are taken to have been heard by virtue of the affidavits filed along with various annexures, if need be, in compliance with the rules of court which were considered by the court before taking such decision either way. In the instant case, after the defendants were served with the specially endorsed writ of summons of the plaintiff along with the supporting affidavit and other annexures, indicating that the claim against them was to be heard as undefended, the defendants filed a notice of intention to defend the suit with an affidavit of 26 paragraphs to which couple of documents were attached and marked as exhibits. The plaintiff in turn filed a further affidavit in reply.

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 for summary judgment. See: Ekulo Farms Ltd & Anor v. Union Bank of Nigeria Pic (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 trial. 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 Nl,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 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 judgment to the plaintiff. This is “a summary judgment 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 judgment and any application for such is incompetent and should be so dealt with.

After due consideration of the plaintiff’s application for judgment, 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 judgment.

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 Mosheshe General Merchant Ltd. v. Nigeria Steel Products Ltd. (1987) All NLR 309 at 319, (1987) 2 NWLR CPt. 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 judgment for the sum admitted leaving the balance to be contested. In such a case, the judgment 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 judgment 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 judgment 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.

The application for judgment was said to have been predicated on Order 30 rule 3(1) & (2) of the High Court (Civil Procedure) Rules but not on Order 23 of the High Court (Civil Procedure) Rules meant for undefended list procedure matters, The said Order 30 rule 3(1) reads thus:

“Where admissions of fact are made by a party, either by his pleadings or otherwise, any other party may apply to the court for such judgment or order as upon those admissions he may be entitled to, without waiting for the determination of any other question between the parties and the court may give such judgment or make such order, on the application as it thinks fit.”

The court below had agreed with the respondent that ordinarily there was no right of appeal against the decision of the trial court transferring the suit from the undefended list to the general cause list, hence the reason for predicating the application for part judgment on a different Rule of court – Order 30 rule 3(1) of the High Court (Civil Procedure) Rules (supra),

There is indeed no right of appeal against the Order of the trial court which transferred the suit from the Undefended List to the general cause list, by whatever means or ways. Section 241(2)(a) of the 1999 Constitution (as amended) is very clear on this and it reads thus: “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.”

With the Order of the trial court transferring the action from the undefended list to the general cause list, both parties had been heard on their affidavits evidence before the court. The only option opened to them therefore was to proceed to file their pleadings.