Default Judgement given when there is non-compliance with a particular procedure or step required to be taken under the rules of court. Default judgment will arise will when a particular person has failed to comply with steps that are required to be taken under the rules of court. Where there is a counter claim against the claimant, the claimant becomes a defendant to the counter claim, and the claimant will be expected to file his reply and defence to the counter claim, and where he doesn’t do that the judge may go ahead and give judgment against the claimant in default of the claimants compliance. Any claim

Types of default judgment under the rules.

1. Default of appearance. Order 10 Lagos; 0r 13 Abuja. A defendant should enter an appearance within 42 days in Lagos and 8 days in Abuja, and when the defendant fails to do that the claimant can bring an application to the court to enter judgment in default of the appearance. So the prayer would be “an order of this honourable court entering default judgment against the defendant in default of appearance”
2. Default of defence. See or 20 Lagos; order 25 Abuja – this means someone ought to enter or file his defence in the action has failed to do it within the time stipulated to do so under the rules. In Lagos time to enter defence is 42 days; in Abuja it is 14 days. Application for default judgment for default of defence is by Motion on notice supported by affidavit and a written address. You have to state the type of application of default judgement you’re applying for, is it based on default of appearance or default of defence 

 

For judgement to be given on merit the judge must have listened to the two sides. For judgement on default only one side. If its not a judgement on merit it can be set aside. So every default judgment can be set aside.

Setting aside default judgment – before it can be set aside some conditions must be fulfilled. See order 10 rule 11 Lagos; order 13 rule 6 & order 25 rule 9 Abuja; note C/F order 20 rule 12 Lagos. These all provide that any default judgement can be set aside

Under order 10 rule 11 Lagos, three conditions must be met

1. The application must be made within a reasonable time
2. Your affidavit must show a good defence to the claim
3. You must state good reasons why you’ve defaulted in filing within time

 

However order 20 rule 12 Lagos which talks about default of pleadings departs entirely from the provisions in the rules above. The implication of this provisions is that all default judgements in Lagos are final and would remain valid and would only be set aside on the grounds of fraud, non-service or lack of jurisdiction. So in Lagos there is no automatic set aside again, But in Abuja it can be set aside on any ground once those three conditions are met. But in Lagos you must fulfil the three conditions and it must be one of those 3 grounds.

Mode of application to set aside – motion on notice supported by affidavit and written address and you’d be praying for an order of this honourable court to se

Under order 44 , rule 4 Lagos , provides that the court has inherent power to extend the time within which to do an act, but however where someone has defaulted in doing something in Lagos, they would be penalised in cost to pay the fee of N200 for each day of the breach until they comply.

 

Cases where default judgment cannot be entered. See Obawole v Williams [1996] 10 NLWR (pt 477) p. 146.- in this case the SC held that where the court is called upon to make a declaration of rights or declaratory relief  , it is incumbent for the party claiming to prove his case by calling evidence even if the defendant defaults. The claimant / plaintiff is required to prove his case on merit.  

So even if the defendant fails to enter appearance or file a defence, default judgement cannot be given. In such a situation the claimant/plaintiff will be required to prove his case by calling evidence or going to trial. These instances include where they are claiming declaratory relief or declaratory action, in these cases where a declaration of the court is sought a default judgement cannot be given. 

 

Priority between application for default judgment and application to regularise. See NALSA & Team Associates Ltd v NNPC (1991) 11 SCNJ P.51

Where there are two applications before the court, the application for extension of time to file his defence/appearance (application to regularise) will take priority and the claimant will withdraw his application and when doing this he can ask for cost.

 

 

SUMMARY JUDGEMENT

Summary judgment is different from default judgment

Meaning of summary judgment – this means there is no recourse or resort to full trial. It’s a judgment that’s given summarily/ the judgment is only based on the court considering the writ of summons that has been filed, statement of claim, statement of defence, application for summary judgment, affidavit in support, counter affidavit and written address. No calling of witnesses, or filing of pleadings, its only on the documents above.

It is usually used to dispose cases expeditiously especially cases where it is obvious that the defendant does not have a defence to the action. See SODIPO V LEMMINKAINEN (No2) (1986) 1 NWLR (PT 15) P 220

In summary judgment procedure the judgment is usually given on the merit because it is given in default of defence to the claimant’s claim.

Judgment will not usually be set aside by the same court that granted it except on appeal. However there may be some instances where they will be set aside

Types of summary judgment

• Order 11 procedure Lagos
• Undefended list procedure. Order 21 Abuja
• Judgment on admission of facts. Order 19 rule 4 Lagos; order 28 rule 3 Abuja
• Judgment on application for accounts. Order 12 rule 1 Lagos; Order 16 Rule 1 Abuja
• Consent judgment. Ras Pal Gazi const. co ltd v FCDA (2001) 5 SCNJ p.234

 

What is liquidated sum? – This is a sum that can be easily ascertained by mathematical or arithmetic calculation. It is a fixed sum that is certain. E.g. debts owed, money agreed upon, **special damages

What is unliquidated sum? – This sum is not fixed, or ascertainable until the court decides as to what exactly the sum awarded to be as it deems fit e.g.issues of interestthat have not been agreed upon, general damages – the court is the one who decides what a party should beallocatedas general damages.

 

Order 11 procedures Lagos

This is applicable in Lagos. Order 11 rule 1 Lagos. The principal and basic condition for bringing the application is that the claimant believes that there is no defence to his claim. Order 11 rule 1. When bringing an application under order 11, in the affidavit -  a paragraph in the affidavit must dispose to the fact that the claimant believes there is no defence to his claim.

Claims or subject matters to which it will apply  - there is no restriction, it can be applied to any claim or subject matter. Order 11 rule 1 doesn’t give any restriction it just gives the basic condition that the claimant believes there is no defence to his claim.

Procedure for bringing order 11 application

Steps to be taken by the claimant/applicant.

1. Claimant shall commence his action by filing his originating process(writ of summons) and other supporting documents (statement of claim, list and copies of documents to be relied upon, deposition of witnesses on oath, application for summary judgement and the application shall be by motion on notice, affidavit in support stating the grounds for his belief, and a written brief in support of the application - these are all the documents to be frontloaded). See order 11 rule 1 Lagos, when it comes to order 11

 

Mode of application. Order 39 rule 1(1) & r 3(1) Lagos – as the rules don’t provide otherwise, the application will be by motion on notice supported by affidavit and written address.

The prayer would be –“An order of this honourable court granting judgment against the defendant in the sum of 50 million naira”

 

What should the affidavit contain?

1. The affidavit must also state material facts by which they would prove their case in support of the application
2. The affidavit must also state the grounds for the claimant’s belief that there is no defence to his claim. See order 11 rule 1 Lagos

 

Who can depose to the affidavit? The claimant or any person who is conversant with the facts of the case, however where the person deposing is not the claimant he must state his source of information – I was informed by …at …….(place)…. and I verily believe that….. See Emuwa v Consolidated Discounts ltd (2001) 2 NWLR (PT 697) P 424; SODIPO V LEMMINKAINEN (No 2) (1986) 1 NWLR (pt.15) p.220

 

Note: In a Counter affidavit there are meant to be two separate paragraphs after the introductory paragraphs that show the connection between the defendants affidavit and original affidavit by the claimant/ plaintiff. 1) I have seen and read the affidavit sworn to by……  2) the contents of para 2,3,4,5 etc. are untrue , then after this the defendant can continue telling their own story in the affidavit.

 

Where the claimant has filed the originating processes and documents to be frontloaded, he must submit to the registrar enough copies as there are defendants for service on the defendants

Order 11 rule 3 provides that all the processes referred to in rule 1 must be served the same way originating processes are served. It must be personal service because they are originating processes, but if this cannot be effected then application for substituted service can be made.

Defending the application

Steps to be taken by the defendant who intends to defend.

1. File statement of defence and all frontloaded documents listed under order 11 rule 4 Lagos.
2. All documents in defence must be filed not later than the time prescribed for filing (42 days after service of originating process on him). Order 11 r 4 & order 15 r 1(2) Lagos

 

When bringing an application for summary judgement what level of defence should be brought? It is not necessary to show a complete defence, the defence doesn’t need to be proven on the balance of probabilities. You only need to show a prima facie defence, a good defence or a triable defence.

No need to show a complete defence. See AdebisiMcgregor assurance limited v NMB (1996); Federal Military Government v Sanni (1970)

 

Giving judgment to the application

Failure of the defendant to comply with order 11 rule 4 Lagos – so where he fails to file any process to the action then the court will go ahead to ….

Various orders that the court can make:

1. Wheredefendant has a good defence– he would be granted leave to defend the action and when he’s granted leave, it means the matter will go to trial
2. Where defendant has no good defence– here the judge will enter judgment in favour of the claimant

• Where there’s good defence to only part of the claim – he would be granted leave to defend that part where he has disclosed a good defence, but judgment will granted against him for that part where he does not have a good defence

1. Where any of several defendants has a good defence – the court will grant leave to defend the actions to those few defendants who have a defence, but he will enter judgment against those defendants who have not disclosed a good defence

See order 11 rule 5 & 6 Lagos

 

Effect of judgement under order 11

Is it judgment in the merit & final or can it be set aside as a default judgment?SeeUTC v PAMOTEI (1989) 3 SCNJ 79; IRON PRODUCTS V SENTINEL ASSURANCE CO LTD (1992) 4 NWLR (PT 238) 794 – these two cases were decided under order 10 Lagos which is now order 11. The court in these cases tried to distinguish cases, where he has joined issues, it would be on the merit and it cannot be set aside but where he has not filed anything and he was absent in court and has not filed anything it would be a default judgment and it can be set aside

Where it is given in default, it can be set aside as a default judgment

 

Note however provision of order 20 rule 12 Lagos which says that all judgements under the rules are final and can only be set aside on three grounds – although order 11 does not state whether its judgment on merit or whether it can be set aside, by implication of the two cases above and the provisions here, where the order is given in default of the defendant filing any processes that judgment would be seen as a default judgment but by virtue of order 20 rule 12 it is seen as a final judgment and can be set aside on the grounds of fraud, non-service and lack of jurisdiction.Thus order 11 procedure can be set aside on those three grounds, non-service, fraud and lack of jurisdiction.

 

No right of appeal against decision of the High court granting unconditional leave to defend. See s 242 (2)(a) 1999 Constitution; NBN V WEIDE & CO (1996) 8 NWLR (PT 465) P 150 – this is based on the principle of fair hearing; NISHIZAWA LTD V JETHWANI (1984) 12 SC 234

 

Undefended list procedure

This is applicable in Abuja and its in order 21 rule 1 Abuja. It also applies to all other jurisdictions except Lagos. The basic condition/reason for bringing this procedure is that the plaintiff believes that there is no defence to his action.

To what claims or subject matter will it apply? Order 21 rule 1 Abuja – it applies only to debts and liquidated money demands. This is different from order 11.

 

Procedure for bringing the application

Steps to be taken by party seeking to adopt the procedure:

3. At the time of applying for issuance of the writ in form 01, applicant makes an application for summary judgment under the undefended list supported with an affidavit.

 

Over what claims will it apply?

Mode of application. See order 21 Abuja; Ahmed v trade bank Nig plc (1997) 10 NWLR (pt 524) p 290 – motion ex-parte supported by affidavit in Kaduna and Kano. In some other jurisdictions, you’re only expected to file your writ of summons together with affidavit in summons – Kwara hotels ltd v Ishola (2002) 9 NWLR (PT 773) P 604 , this applies to Abuja and Kwara. In some jurisdiction they just write a letter of application and affidavit in support – cash affairs Finland limited v inland bank Nig plc (20020 5 NWLR (pt 658)  p 568

 

Content of affidavit in support of writ of summons - same requirement as order 11.

1. The affidavit must also state material facts by which they would prove their case in support of the application
2. The affidavit must also state the grounds for the claimant’s belief that there is no defence to his claim.

See EDEM V CANNON BELL LTD 91998) 6 NWLR (PT 558) P 298

 

Number of copies of processes to be filed. Order 21 rule 2 Abuja – as many copies as there are defendants.

 

For a general action you have to cause an appearance to be entered within 8 days of the service of the writ of summons. Under the undefended list process …….

 

Step to be taken by the court after filing of writ & affidavit:

1. Where there are good grounds for believing that there is no defense to the suit the judge in chambers shall enter the suit for hearing under the undefended list.
2. A return date for hearing shall be stated on the writ of summons for service on defendant together with the affidavit. – This return date is date meant for the defendant to come and defend the action. Order 21 rule 1 (2)

 

Defending the application

Where the defendant is not disputing the claim, he doesn’t have to do anything. On that return date the judge would just go on to give judgment against the defendant under the undefended list. See Ahmed v Trade Bank supra.

Effect of judgment entered against such defendant - Any judgement entered in default of the defendant filing a statement of defence will be judgement on the merit and it cannot beset aside by the same court except on appeal. See UAC TECH LTD V ANGLO CANADIAN CEMENT LTD (1966) NMLR 249 @ 350 , LEVENTIS MOTORS LTD V MBONU 91962) NMLR 19; ACB LTD V GWAGWALADA (1994) 5 NWLR ( PT 342) 25.

 

Where defendant intends to defend the action, he is required to file two documents:

1. Notice of intention to defend the suit; and
2. Affidavit disclosing a defence on the merit

See order 21 rule 3(1) Abj

• Time limit for filing notice of intention to defend an affidavit:

3. 5 days to the date fixed for hearing –you cant just say 5 days, you have to say “5 days to the date fixed for hearing of the application”. See Order 21 rule 3(1) Abuja & BULET INT NIG LTD v ADAMU (1997) 3 NWLR (PT 493) P 348;

How to draft the affidavit –

Draft of notice to defend: Heading of the court; suit number; parties and the capacities in which they’re suing; title - notice of intention to defend; “Take notice that the defendant herein wishes to defend the action/ the defendant intends to defend the action only ”; dated this ……..day of ………; the name of the counsel preparing the notice, signature and address; and for service on the claimants counsel and address.

 

Where a defendant is unable to take steps within time, he can ask for extension of time within which to file his notice of intention to defend and affidavit in support. See BULLET INT NIG LTD v ADAMYU supra

What defendant’s affidavit must disclose.

4. Enough facts to controvert the averment in the plaintiff’s affidavit; and
5. Enough facts to support his defence

See AGRO MILLERS V CONTINENTAL MERCHANT BANK (1997) ; JIPREZE V OKONKWO (1987)

Note that at the stage the defendant is only required to state good, triable, prima facie defence and not a defence that will succeed at the end of the day.

 

Orders the court can make on the date fixed for hearing:

1. When the court has listened to the two sides and feels or is of the opinion the defendant has disclosed a good defence the court can:Grant leave to defend
   • What happens where leave to defend is granted to defendant? This means the matter will be removed form the undefended list and transferred to the ordinary cause list and the effect will be that the matter will go to trial. Order 21 r 3(2) Abuja
2. Where the defendant cannot disclose a good defence the court will - Refusal of leave to defend and go ahead and enter judgement against the defendant on the undefended list .see order 21 rule 4 Abuja; BATURE V SAVANNAH BANK (1998) 4 NWLR (PT 546) P 428

 

Where defendant files only a notice of intention to defend without supporting affidavit JOHN HOLT & CO (LIVERPOOL) LTD v  FAJEMILOKUN ; court will grant adjournment to go and file affidavit

 

Effect of judgment

What is the effect of judgment under the undefended list? It is final and on the merit and it cannot be set aside by the same court except on appeal. See LEVENTIS MOTORS LTD V MBONU supra; UAC ltd ANGLO CANADIAN CEMENT SUPRA; ACB v GWAGWALADA SUPRA

6. There is no right of appeal against the decision of the high court granting unconditional leave to defend. S 241(2)(A) 1999 constitution; NBN V WEIDE & CO; NISHIZAWA LTD V JETHWANI (1984) 12 SC 234

 

Ethical issues

What are the ethical issues that may arise in respect of default and summary judgment procedures?

• A lawyer shall not swear any affidavit on behalf of the parties
• Abuse of court processes