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Tuesday 17 January 2017

CIVIL LITIGATION: DEFAULT JUDGMENT & SUMMARY JUDGMENT THROUGH CASES AND PRINCIPLES




 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
                        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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