Summary and Default Judgements in Nigerian Civil Litigation

Summary Judgment is a fast tracked proceeding in court that allows judgment to be obtained without the merit and complements of a full trial. It is a decision made by the court based on statements and evidence presented for the record without going to full trial. This kind of judgement is given when there is no dispute as to the material facts of the case and a party is entitled to judgement as a matter of law.

The purpose of a summary judgment is to avoid unnecessary trials. It is also essential in some cases because it helps to simplify the trial process. Any party may move for summary judgment. It is also not unusual for both parties to do so. 

On the other hand,  a Default judgment is a judgment entered for a party upon the adverse party’s failure or inability to fulfill and perform a certain task or condition required of such party.


Summary and Default Judgements in Nigerian Civil Litigation - VineLegal

Usually, default judgment can be set aside by the same court where the defaulter can show reasonable cause for the default.
– summary judgment is usually given on the merit and substance of the case and therefore can only be set aside on appeal (general rule)
– summary judgment is a procedure usually resorted to upon the BELIEF THE DEFENDANT HAS NO DEFENCE

Default Judgement

As provided for in Order 10 of the Lagos State High Court Rules and Order 13 of the Abuja High Court Rules, Default Judgment is best defined as one that is obtained pursuant to an application by the plaintiff upon the failure or default of defendant to enter appearance or defense. According to the rules of court, the court can only set aside such judgment upon an application by the defendant supported with an affidavit stating the following:
  • good cause for the delay in appearance or defense
  • a good defense to the claim
  • such application must be brought within a reasonable time
– in setting aside any default judgment, the court usually considers the following factors as was stated in the case of Williams V. Hoperising Voluntary Fund SOCIEty:
1.the reasons for the applicant’s failure
2.the time in which the application to set aside judgment was brought
3.whether the party in whose favor the judgment was entered would not be embarrassed upon an order or re-trial
4.whether the applicant’s case is manifestly unsupportable _ usually in abuja
Note: IN Lagos, a judgment entered in default of pleadings can only be set aside on grounds of fraud, non-service or lack of jurisdiction.
– this procedure is used when plaintiff believes that there is no defense to his claim
– upon such belief, the plaintiff must file with his originating process an application for summary judgment via a motion on notice supported by an affidavit of facts stating grounds for such belief
– this procedure can be used for any kind of claim
– procedure:
.front loaded processes
.application for summary judgment
.affidavit and written address
.processes would then be issued and served on defendant
– where the defendant intends to defend, he must file the following:
  • statement of defense
  • .witness statements on oat
  • .exhibits/documents to relied for defense
  • .counter-affidavit in support of application
  • .written address
note: the affidavit in support of the application must show the grounds for the applicant’s belief that the defendant has no defense. it can also be shown the defendant is likely not to dispute the facts.
– where it appears to the court that the defendant, from his statement of defense and counter-affidavit, has a good defence on the merit, the court may thereupon grant leave to the defendant to defend the claims agains him.
– once such order granting leave to defend, the case would be entered into the GENERAL CAUSE LIST
– where it appears to the Court from all the documents placed before the court that defendant has no defencem the court would then enter judgment for the plaintiff
– where the defendant merely showed a defence to certain claims and no defence to other claims, the court would enter judgment for the claims not sufficiently defended.

Undefended Lists

The Undefended List Procedure  (ORDER 21 ABUJA)
– this is usually for recovery of debt or liquidated money demand
– demand is ‘liquidated money demand’ where the claim or money demand can be mathematically computed
– procedure:
1.file a writ of summons
2.accompanied by an affidavit of facts stating:
.the facts of the case
.that it is for recovery of debt or liquidated money demand
.the belief that defendant has no defence application that the writ be placed on the ‘undefended list’ and marked as ‘undefended’
note: failure of plaintiff to disclose the grounds of his belief that defendant has no defence is not fatal to the action. it is for the court to guide itself with processes before it as to whether the defendant may have a defence - See Edem v. CANNONBALL Ltd.

– if the court is satisfied that there is good ground for believing that defendant has no defence to the claim, it would make an order placing the writ in the undefended list. the court would then fix a return date for hearing
– where defendant intends to defend the claim, he must then file an INTENTION TO DEFEND accompanied by a counter-affidavit disclosing his defence.
note: the defendant intending to contend the claims of the plaintiff must file the INTENTION TO DEFEND at least 5 days to the date fixed for hearing
the court on the return date is to determine from all the processes before it whether the defendant has disclosed a defence on the merit
– if there is a defence on the merit disclosed, the court shall remove the matter from the ‘undefended list’ and transfer same to the ‘general cause list’ and order that pleadings be exchanged or order a trial without pleadings.
– if the defendant shows no defence, the court will hear the action as undefended and enter judgment for the plaintiff, so long as plaintiff has successfully established his claim.
– the GENERAL RULE is that judgment under the undefended list can only be set aside on appeal since it is judgment on the merit
– however the exceptions to this general rule where judgement obtained under this procedure may be set aside by the same court include:
.where there is evidence of fraud
.proof of non-service
.proof of lack of jurisdiction of the court - Mark v. Eke
It is without doubt that there is no limitation of time within which a Court may be called upon to set aside a Default Judgement. It is the Law that a party upon whom a default judgment has been entered against has the right to apply to Court for an Order setting aside such Default Judgment. see OTEJU V. MAGMA MARITIME Service Ltd (2000). 
However to be entitled to the enjoyment of the right to have a Default judgment set aside, the Applicant must place before the Court sufficient materials to enable the Court exercise its discretion in setting aside its own Judgement.
To my mind, the relevant considerations upon which the court will base its decision as to whether or not to grant the application to set aside judgment made in default would indeed depend on the exact rule of court defaulted. Whether it be a Default in appearance, Default to file Defence within Time etc, the applicant must place before the Court suffience reasons for the said default.
That said, the Court has in a plethora of cases laid down general factors or considerations in which an application for the Order of Setting aside Default judgement may be based. see W.I. SPA MILAN V. J.I. NWANYANWU; N.A. WILLIAMS V. HOPE RISING VOLUNTARY FUNDS SOCIETY.
It does appear that before an applicant can move the Court to set aside a Default judgment, the Applicant need first pray the Court for ‘An Order extending time within which the Applicant may apply to Court to set aside the Default Judgment’. This prayer indeed serves as a precursor to a right to apply to set aside. This is even more necessary where the Default in question is one that relates or pertains to ‘the time to do an act’. See NOGA HOTELS INT’L V. NICON HOTELS LTD
In light of the above, the following question arises: “if an applicant has a right to apply to set aside a judgment in default, can such right be acquiescenced?” I dare answer this question in the negative. Lapse of time is evidence of acquiescence but lapse of time in itself and by itself alone does not amount to acquiescence. Other factors must exist which make it unjust and against equity. See M. S. ATUNRASE & ORS v. ALHAJI ABDUL MOJID SUNMOLA & ANOR (find attached).
In conclusion, it is clear that no law stops a party from applying to set aside a default judgment. However, a clever advocate may argue the existence of other factors that should bar such application. I’ve seen a lot of authorities where the Court was called upon to set aside a default judgment. In all such cases, no where has the Court considered the Time lag as a factor. 

Timing of Decisions

The courts will ordinarily render decisions at the end of the case, after considering all the representations of the parties. Nevertheless, when we talk about processes in Nigeria the courts are empowered, in appropriate circumstances, to summarily terminate proceedings by dismissing actions where it is clear that the action discloses no cause against a defendant, is frivolous or otherwise amounts to improper use of the judicial process, or by granting summary judgment where it is clear that the defence proffered is no answer to the claim made. Applications for summary dismissals and judgments are provided for in the procedural rules of all High Courts in Nigeria. 
Default judgment for processes in Nigeria 
Default judgments may be made where a defendant fails to enter an appearance to an action or fails to file a defence to a claim for a debt or liquidated demand. 
Summary judgment 
Summary Judgment is a judgment entered in favour of the Plaintiff or Claimant summarily without going through a full trial, i.e. hearing of evidence and written address by counsel. Talking about processes in Nigeria, the judgment is based on the writ of summons, the statement of claim and sometimes, statement of defence. In some circumstances, there may be no pleadings, but just an affidavit by the Plaintiff and a counter affidavit by the Defendant.
There are various types of summary judgments under the rules of courts dealing with processes in Nigeria. There is summary judgment based on admission of facts, summary judgment on application of accounts, summary judgment under Order 13 of the Lagos State High Court Rules and summary judgment under the undefended list procedure. A consent judgment is also a form of summary judgment but it differs on the ground that it is agreed on by the parties without adjudication by the court. 
Summary Judgments under Order 13 (Lagos State)
This procedure is used for processes in Nigeria where the Claimant believes that there is no defence to his claim. It may also be used where it will amount to a delay to allow the Defendant to defend the action or where the facts are straight forward and uncontested by the Defendant. At the time of filing, the Claimant shall accompany his writ of summons with the following:
1.    Statement of claim;
2.    The exhibit to be relied on at the trial; and
3.    The depositions of his witnesses.
In addition to the above documents, when we talk about processes in Nigeria, the Claimant shall also file an application for summary judgment, supported by an affidavit stating the grounds for his belief that there is no defence to his claim. Furthermore, he shall file a written brief i.e. arguments in support of the application.
Although the Rules of Court are silent on the mode of bringing the application for summary judgment before the court; however, dealing with processes in Nigeria, it is suggested that it should be by motion on notice given that all applications to the court except otherwise required, shall be by way of motion supported by affidavit. 
Where the Defendant Intends to Defend
If the Defendant who is served with the processes in Nigeria has a defence to the claim and intends to defend same, he must do so by filing the following documents within the time stipulated for defence:
1.    Statement of defence
2.    Deposition of his witnesses
3.    Exhibits to be relied on; and
4. A written brief in reply or opposition to the application for summary judgment.
This means that the Defendant is no longer required to file a counter-affidavit when we talk about processes in Nigeria. All he needs to do is file his statement of defence along with the aforementioned documents within the time stipulated for defence which is 42 days from the day of service of the originating process and accompanying documents. The Defendants must also file a reply brief to the one filed in support of the application. Note, however, that his statement of defence must disclose a valid prima facie defence on the merit. Where the statement of defence discloses no reasonable defence to the claim, the Claimant shall be ordinarily entitled to summary judgment.
Where a Defence is Disclosed
On the day of hearing of the application, for processes in Nigeria, the Judge shall look at the statement of defence and if it appears to him that the Defendant has a good defence, he shall grant the Defendant leave to defend in which case, the matter will be entered in the general cause list to be tried fully. 
Where no Defence is Disclosed 
If it appears to the judge that no good defence has been disclosed by the Defendant, he may enter judgment in favour of the Claimant and such judgment is a final judgment having been delivered on the merit; it can only be set aside on appeal. Where, however, the Defendant fails or neglects to comply with the requirements of the Rules, like failing to file his defence and written brief, for instance, the judgment entered thereon would be a default judgment and may be set aside where good cause is shown by the Defendant. It should be noted that, for process in Nigeria, the Defendant may disclose a good defence to only a part of the claim. In such circumstances, the Judge may enter judgment in respect of the part to which no defence has been disclosed and grant leave to defend that part to which a defence has been disclosed. It is also noteworthy that where there is more than one Defendant, the Judge may enter judgment against those Defendants who do not disclose a defence to the claim, but shall grant leave to those who disclose a defence. Parties are at liberty to advance oral submissions in elucidation of their written briefs.

Duration of proceedings
The time taken, for processes in Nigeria, depends on the nature of the case and the jurisdiction in which the case is being determined. More complex cases will inevitably take longer. However, in jurisdictions such as Lagos, where the courts are fully active, cases tend to take less than 6-18 months and frequently much lesser. When we talk about processes in Nigeria, under the new High Court of Lagos State (Civil Procedure) Rules 2019, claims for liquidated monetary or counterclaim in a sum of One Hundred Million Naira, mortgage transaction, charge or other securities, and a liquidated monetary claim by a non-Nigerian national or non-resident in Nigeria, are qualified to be commenced in the fast track court, where the time spent on litigation must not exceed nine months from the date of commencement of the action till final judgment. Under this procedure, the Judge is to endeavour to deliver its judgment within 60 days from the completion of the trial.

 ¶ In summary, the criterias for getting a summary judgment includes: 
i. The absence of a genuine issue regarding the material facts and 
ii. The party who moves the motion must be entitled to judgment as a matter of law. 

¶ A final judgment is given only if granting of summary judgment settles all issues concerning all parties.

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