*Ogechukwu Obi LL.B(Lagos) B.L
Conducting a full trial is cost intensive and time demanding particularly in cases where the Claimant has a good case and the Defendant has no reasonable defence to the claims. Lack of good defence will precipitate diverse tactics to forestall trial and frustrate the claims of the Claimant. The saying that ‘Justice delayed is justice denied’ is the fate of a litigant in a personal action who dies before he could obtain and enforce judgment in his favour. To abridge time and procedure in cases where it is apparent that a full trial will occasion injustice, Summary Judgment and Undefended List procedure were introduced into the legal system.
This article seeks to examine the summary judgment and Undefended List procedure in Nigeria against the decision in NPA v Aminu Ibrahim & Co.1, where an attempt was made to forestall justice, a tactic the courts tagged a “SHAM”.
This article further argues that where the cause of action meets the criteria for the Summary Judgment and Undefended List procedure, a Claimant should not hesitate to explore the law to its full advantage.
SUMMARY JUDGMENT AND THE RIGHT TO FAIR HEARING
Judgment is ordinarily obtained upon deciding a case on its merits. Deciding cases on their merits connotes that the court has evaluated the evidence presented by both parties before giving its judgment. Civil cases are won and lost upon the preponderance of evidence and once the court renders judgment, it becomes Functus Officio, that is, it has exhausted its power to entertain any issue or claim in respect of that action, therefore, its jurisdiction on that action has perpetually come to an end. Appeal will only lie in a superior court.
The Nigerian Judicial system is adversarial, parties must canvass their cases meritoriously to sway the mind of the court in their favour. Section 36(1) of the 1999 Constitution of Nigeria (as amended)2 – Nigeria’s supreme law, further accentuates the adversarial system to the extent that the section provides for fair hearing. A judgment obtained in breach of this principle cannot stand the test of time and will be upturned at a superior court.
It is therefore pertinent to interrogate the narrative of summary judgment and whether or not it violates the principle of fair hearing under the CFRN 1999.
Summary Judgment as the name implies, is a judgment obtained without a full trial. It is called Summary Judgment Procedure in the some Jurisdictions and Undefended List Procedure in other Jurisdictions. The difference is one of semantics. Summary Judgment as defined in Blacks’ Law Dictionary3 and replicated in Bona v. Textile Ltd v A.T.M Plc.,4 is ‘a judgment granted on a claim or defence about which there is no genuine issue of material fact upon which the movant is entitled to prevail as a matter of law’5.
The primary aim of the summary judgment procedure is speedy disposition of action and quick dispensation of justice without the rigours trial and as was stated above, it is a creation of law and is suitable for recovery of debts or liquidated money demands. Liquidated money demand as defined in Micmerah Int’l Agency Ltd. v A-Z pet. Products Ltd.6 means a debt or specific sum of money usually due or payable and its amount must be ascertainable or capable of being ascertained as a matter of arithmetic without any other or further investigation. In Odume v Nnachi7, the factors for determining a liquidated sum as set out by the court are:
- The sum must be arithmetically ascertainable without further investigation
- It is with reference to a contract, the parties to the contract must have mutually and unequivocally agreed on a fixed amount payable on breach.
- The agreed and fixed amount must be known prior to the breach.
The machinery of the summary judgment procedure is activated once the above criteria are met and the action is non-contentious. In Micmerah Int’l Agency Ltd. v A-Z pet. Products Ltd8, the Respondent claimed the sum of N963,420.00 from the Appellant, 26% pre-judgment interest and 5% interest on judgment debt until final liquidation of the debt. In the supporting Affidavit, the Respondent disclosed that the actual debt owed to it was the sum of N850,000.00 and that it was the bank charges on returned dud cheque the Appellant issued to it that inflated the debt. The Court of Appeal noted with approval that there was no agreement between the parties that the indebtedness would be jacked up by any act or omission on the part of the appellant and by jacking up the indebted sum, the Respondent has made the action a contentious one and the suit was should not have been heard by the trial court under the undefended list procedure.
In a summary judgment procedure, the Claimant shall file in addition to his originating Processes, an application for Summary Judgment. A Defendant who opines otherwise, that he has a good defence to the suit shall within the prescribe time in the Rules file –
Under the (Lagos State Civil Procedure) Rules 2012
- A Statement of Defence
- Witnesses Deposition
- List and copies of documents to be relied on and,
- A counter Affidavit with a written Address responding to the Claimant’s application for summary judgment9.
Under the High Court of the Federal Capital Territory10 and Federal High Court (Civil Procedure) Rules 2009, a notice of intention to defend the suit together with the Affidavit disclosing a defence in merit.11
Upon consideration of the Defendants process, the court may grant the Defendant leave to defend the suit and the matter shall be transferred to the general cause list. But where the court is of the view that there is no defence to the suit, the suit shall be heard as an undefended suit and judgment entered in favour of the Claimant. The decision to grant or refuse leave is within the prerogative of the court where it is satisfied that the requirement of law has been fulfilled.
The case under review is NPA V AMINU IBRAHIM & CO 12 NWLR pt. 1632 62. The facts revealed that by a letter dated April 27, 2004, the Appellant contracted the Respondent, a firm of Chartered Accountants to reconcile the account position regarding the concessions which the Appellant gave Intel Services Limited, Nigeria Liquefied Natural Gas and Mobil Producing Unlimited. Repeated demands were made by the Respondent to the Appellant for payment of the agreed consultation fee to no avail, the Respondent went as far as reducing the agreed fee from 18% of the recovery sum to 5% but even that was not paid. The Appellant at no time responded to the various letters sent by the Respondent, the Respondent then sued the Appellant before the Federal High Court for recovery of its consultation fee in the sums of USD 9,186,701.00 and N144,303,981.00 together with 10% interest until final liquidation of the debt.
The Appellant in a bid to forestall the application filed a notice of intention to defend the suit and an Affidavit urging the court to grant it leave to defend the suit claiming inter alia:
- The Respondent did not perform the contract satisfactorily
- The Agreement was to be executed within 35 days which timeline the Respondent did not meet
- There was no extension of time
- Parties did not agree to the sum of USD 9,186,701.00 and N144,303,981.00
- The Respondent unilaterally varied the remuneration payable from 18 % to 5% and the appellant never agreed to the variation
- The payment of the fees was contingent upon recoveries of the identified short falls from the affected companies and no such recoveries were made
The trial Court discountenanced the Defendant’s defences and entered judgment for the Claimant. The trial court held that the defences raised by the Defendant did not call for a transfer of the suit under the Undefended List procedure to the general cause list especially in view of the fact that the Defendant did not exhibit any document to assert it claims. The Defendant aggrieved by the decision appealed to the Court of Appeal which upheld the judgment of the trial Court. The Defendant further appealed to the Supreme Court.
The Supreme Court per Sanusi JSC held that in an action brought under the undefended list, the court is required to consider only the evidence contained in the affidavit filed by the Defendant in support of his notice of intention to defend the suit. Once the court comes to the inevitable conclusion that the affidavit does not disclose a defence on the merit or a triable issue, then the court is to proceed with the hearing of the suit as an undefended suit and enter judgment accordingly without calling the defendant, even if present in court, to answer or be heard. The affidavit in support of the notice of intention to defend must show that the grounds are not frivolous, vague or disquiet to delay the trial of the action and it must show that there is dispute between the parties.
To further appreciate the essence of the summary judgment and Undefended List procedure, it is imperative to recall that a judgment is obtained upon deciding a case on its merits, that is, after a full trial have been conducted unlike a ruling which can either be obtained at the preliminary stage or at the trial stage. While some rulings are capable of truncating the entire proceedings, it is never said that the action was decided on its merit. But a judgment determines the right and obligation of parties, a judgment under the Summary Judgment and Undefended List procedure defiles the trial process, abridges time and dispense with alacrity, justice for the wronged.
The argument is, should quick dispensation of justice triumph over the defendant’s right to fair hearing?
Recall the Lagos State Civil Procedure Rules 2012, a Defendant who wishes to defend the suit against him must frontload his defence along with his Counter Affidavit to the Claimant’s Summary Judgment Application whereas under the High Court of the Federal Capital Territory and Federal High Court Rules, the Defendant must file a notice of intention to defend together with his Affidavit. This in itself is an opportunity given to the Defendant to provide cogent reason why judgment should not be entered against him.
In N.P.A v Aminu Ibrahim & Co. the Appellant filed its Notice of Intention to Defend and an affidavit without attaching any document to substantiate its claim. The Appellant argued that it is needless to exhibit documents to its Affidavit before being allowed to defend same. It further stated in its Affidavit that the concession by the Respondent to reduce its fee from 18% to 5% amounted to a counter offer; the job was not satisfactorily executed; the job was not executed within the stipulated timeline. The Respondent in its reply stated that the concession was merely a reduction to enable them pay and not a counter offer taking cognizance of the fact that the contract has been performed; the Appellant at no time communicate its dissatisfaction with the job to the Respondent; the timeline was not challenged when the job was delivered; it is a firm of chartered accounts and not a debt recovery agency and it will be illegal to ask them to do what the law has prohibited them from doing. Debt recoveries are done through litigation and arbitration. The trial court attributed its reason for withholding leave to defend on non-presentation of sufficient materials before it.
Section 132 of the Evidence Act 2011 provides that a documentary evidence cannot be controverted orally. The Respondent presented before the court, documents to evidence the breach of the contractual relationship by the Appellant, documentary evidence the Appellant sought to controvert by mere oral averments in its Affidavit evidence. It is thus the position that though the court will not conduct full trial, it will delve into the substance of the case at the preliminary stage, a time the Defendant by his affidavit must convince the court on why he should be allowed to defend the suit, a Defendant who has neglected to make judicious use of this opportunity cannot be heard to complain as equity aids the vigilant and not the indolent. It is not enough to assert; the assertion must be corroborated with cogent evidence.
Summary Judgment and Undefended List Procedure is the fastest means of dealing with non-contentious cases of liquidated money demand. It expedites trials and in no way violates a Defendants’ right to be heard. Rather, it propels the Defendant to place before the court cogent reason while allowing him to defend the suit will not amount to a waste of precious judicial time. It is immaterial that a matter falls under the category of the procedure if the Claimant does not apply for it. The Court cannot grant an unsought claim.
1  12 NWLR pt. 1632 62
2 Hereinafter, CFRN, 1999
3 9th Ed. 1573
4  2 N.W.L.R pt. 1338 357
5 See page 372
6  2 N.WL.R pt. 1285 564
7  1 ALL NLR 329
9 See Order 11
10 See Order 21
11 See Order 12