FOR THE PURPOSE OF BAR PART 2 WE WERE TOLD
THAT THIS TOPIC IS VERY IMPORTANT, SO PLEASE TAKE IT SERIOUSLY.
N.B: We
will upload the corrected drafts for this topic on or before Saturday. So Take
Notice.
DEFAULT
JUDGMENT
MEANING: This is a judgment given in favor
of a Plaintiff/Claimant where the defendant failed to do anything required by
the Law/Rules of Court in particular proceedings.
The
Types of Default Judgment are;
1)
Default
in Appearance. See ORDER 10Lag Order 13
ABUJA
2)
Default
of Defense. See ORDER 20 LAG Order 25 Abuja
In simple
language, it a form of judgment given in favor of a claimant when the other
party has defaulted or failed
to comply with Rules of Court, let me explain when if A institute an action
against B, A filled his Originating process and B entered appearance but fail
to file his statement of defense, A can make an application to the court to
enter a default judgment for B default of defense.
SO THE NEXT QUESTION IS DEFAULT
JUDGMENT GIVEN ON MERIT?
No,
because it a form of judgment that is given due to an irregularity and the
other party side was not heard in granting the Judgment.
POSER: CAN IT BE SET ASIDE?
Yes,
however the conditions for setting aside are;
1)
The
defendant must state a good reason
2)
He
must disclose a good defence
3)
He
must bring the application within a reasonable time.
Now let consider the RULES OF
COURT, Lagos and Abuja in Order 10 r 11Lag, Order 20 r 12 lag and Order 13 r 6
Abuja & Order 25 r 9 Abuja, they all empower the court to set aside default
judgment.
However,
take note, if you asked for the grounds for setting aside in the two
jurisdiction it quite different.
IN LAGOS: By virtue of ORDER 20 R 12, the
grounds are;
1)
FRAUD
2)
NON-SERVICE
3)
LACK
OF JURISDICTION
IN ABUJA: By virtue of Order 25 R 9, the
grounds stated is that on such terms as the court thinks just.
PROCEDURE FOR APPLICATION TO SET
ASIDE
Motion
on Notice which is supported by Affidavit and Written Address, see Order 10 r
11 lag
POSER: ARE THERE INSTANCES WHERE
DEFAULT JUDGMENT CANNOT BE ENTERED?
Yes,
Actions for declaration of rights/ Declarative relief. Example; Declaration for
title to land
In the
case of OBAWOLE V WILLIAMS where the
court held that the law is that where the court is called upon to make declaration
of a right, the party claiming to be entitled to must satisfy the court by
evidence and not just admission in the pleadings of the defendant.
POSER: WHAT HAPPENS WHEN THE
CLAIMANT FILES AN APPLICATION FOR DEFAULT JUDGMNENT AND THE DEFENDANT FILES AN
APPLICATION TO REGULARIZE HIS IRREGULARITY?
The
court in the case of NALSA AND TEAM ASSOCIATES LTD V NNPC The
court stated that it is a well settled position that where there are two
motions before the court requiring to be heard, the interest of the justice
demand that the motion the determination of which would save the substantive action should first be heard.
However,
in doing this, the other party withdraws his application an award of cost is
entered in his favour against the defendant.
SUMMARY
JUDGMENT
In SODIPO V LEMMINKAINEN: the court affirms
the description of a summary judgment to mean a circumstance where it is
obvious or at least it appears to the plaintiff the defendant has no defense to
the claim.
In other
words SUMMARY JUDGMENT is one entered in favour of the plaintiff or claimant without
a full trial. Actually we have like five, but for the for the purpose of BAR
PART 2 we sticking with;
1)
Order
11 Procedure
2)
Undefended
List Procedure
ORDER 11 PROCEDURE
This is
applicable in Lagos. Flowing from ORDER 11 R 1, this procedure is for all
suits/ claim.
BUT PLEASE NOTE that it can only be used where the Claimant believes that there is no defense to his claim and where the facts are straight forward and uncontested by the defendants, this was affirmed in UTC V PAMOTEI
BUT PLEASE NOTE that it can only be used where the Claimant believes that there is no defense to his claim and where the facts are straight forward and uncontested by the defendants, this was affirmed in UTC V PAMOTEI
PROCEDURE
FOR BRINGING THIS APPLICATION
We must
study this to show ourselves approved on the day of EXAM……ORDER 11 R1
The Claimant shall take the following steps’
1)
File
Originating Process which is a writ of summon and the following documents must
be attached;
a)
Statement
of claim
b)
List
and copies of documents to be relied upon
c)
Deposition
of the witnesses
d)
Application
for summary judgment
e)
Affidavit
in support of the application
f)
Written
brief
Consequently,
the MODE OF APPLICATION as stated in ORDER 39 R(1)(2) &R 3(1) Lagos;
a)
Motion
on notice supported by an Affidavit and written address.
NOW
YOU NEED TO NOTE THAT in your AFFIDAVIT, by virtue of ORDER 11 R1, the
AFFIDAVIT must state;
i.
The
defendant does not have a good defence to this claim
VERY IMPORTANT WHO CAN DEPOSE AN
AFFIDAVIT IN THIS INSTANCE?
In ENUMA V CONSOLIDTED DISCOUTS
LTD;
The
court opined that the Affidavit is to be sworn by either the claimant or a
person who can swear positively to the facts verifying the cause of action and
if it is liquidated sum, the amount claimed.
VERY
IMPORTANT: if it is a person nominated by the Plaintiff, he must state that he
authority to swear to affidavit, this was affirmed in SODIPOV LEMINKAENEM
ALSO,
under ORDER 11 R 2, the claimant is expected to deliver to the Registrar as
many copies of the aforementioned documents.
POSER:
WHO SERVE PROCESS?
By virtue
of O R11. Order 3& 7. It may be served;
·
Sherriff
·
Deputy
Sherriff
·
Bailiff
·
Special
Marshal or other officer of the court
·
The
chief judge may also appoint and register any law chamber or courier company.
POSER:
HOW WILL THE DEFENDANT FILE HIS DEFENCE APPLICATION?
He shall
file;
1.
Statement
of defence
2.
Depositions
of his witnesses
3.
List
and copies of documents to be used in his defence
4.
A
counter-affidavit and
5.
Written
brief in reply to the application for summary judgment.
POSER: WHEN SHOULD HE FILE HIS
DEFENCE?
By
virtue of ORDER 15R 1(2), NOT LATER THAN 42 DAYS after service on Him of the
Claimant Originating Process
SO WHAT
HAPPENS NEXT AFTER?
RULE 1:
On the return date, the court will consider if the defendant has a good
defence, if it appears he has a good defence, the court may grant a leave for
him to defend and then proceed to trial. See ORDER 11 R 5(1)
IMPLICATION
They
proceed into trial, for the defendant to defend and the claimant can not has no
right of appeal against decision of the
court granting an UNCONDITIONAL leave to defend. See S.241(2)(A) CFRN 1999 and
N.B.N V WEIDE
RULE 2:
Where it appears that the defendant has no good defense, the court will enter a
summary judgment in favor claimant. See Order 11 r 5(2)
RULE 3:
Where there is a good defence for only part of claim but no good defence to
other parts, the Judge may enter judgment for the part of the claim to which
there is no defence and for that part of the claim to which there is no defense
and grant leave to defend that part to which there is defence. Order 11 R 5(3)
RULE 4:
Where there are several defendants, any one of them with a good defence will be
granted leave to defend, while any defendant without a good defence will have
judgment against him in accordance with. ORDER 11 R 6
ON A
FINAL NOTE, the rule is that a summary judgment Is based on merit and it
judgment is final and can’t be set aside but only appealed.
However, where the defendant in the
form of proceeding fails to enter appearance and files nothing, the Claimant
CANNOT proceed with ORDER 11, the claimant can only apply for JUDGMENT IN
DEFAULT.
This was
affirmed in the case of UTC V PAMOTEI,
in this instant case, the Claimant served a summon for judgment on the
defendant, the defendant after entering appearance, neglected to file the
necessary documents in opposition to the Plaintiff summon for judgment, he did
not also attend the court on the return date and judgment was entered for the plaintiff.
The defendant brought a motion to set aside the Judgment.
When the
case got to the supreme court, it held that judgment entered does not fall
under ORDER 11but it was a default Judgment in the sense that the defendant did
not participate in the proceedings………
Consequently,
if this case arise the grounds to set aside the Judgment is what is stated in ORDER 20 RULE 12 LAGOS
TO BE CONTINUED………
READ HARD
EAT HARD
PRAY HARD
REST HARD…………. BRINGING
THE CLASS TO YOUR HOSTEL!!!!!!!
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