DEFAULT & SUMMARY JUDGMENT

Question 1

What are the types of summary judgment?

Answer 1

1. Summary judgment based on admission of facts
2. Summary judgment on application of accounts
3. Summary judgment under Order 11 Abuja and Order 13 Lagos
4. Summary Judgment under the undefended list – Order 35 Abuja
5. Summary judgment for possession of landed property
6. Consent judgment

Question 2

Documents to file under Summary judgment under Order 11(ABJ) & Order 13(Lag)?

Answer 2

DONE THRU WRIT OF SUMMONS
1. Statement of claim
2. List of witness to be called
3. Copies of docs(Lag)/exhibits(abj)
4. Pre action protocol form 1
5. Application for summary judgment via Motion on notice
6. Affidavit disclosing that the defendant has no good defence
7. Written brief in support

Question 3

Documents the defendant will file to defend summary judgment under Order 11 & 13?

Answer 3

1. Statement of defense(showing prima facie defence on the merit)
2. List of Witness
3. List of documents/Exhibits
4. Counter Affidavit
5. Written reply to the claimant’s brief.
   Memo of appearance
   IN LAG(42 days), ABUJA(21 days)

Question 4

Effect of summary judgment?

Answer 4

It is a judgment on the merit & can only be set aside on appeal(where the defendant enters defence)
However where he fails to do so, it can be set aside on grounds of fraud, non service & lack of jurisdiction(default in appearance)

Question 5

documents for Summary judgment under undefended list(ORDER 35)??

Answer 5

-Writ of summons(Form 01)
-Affidavit in supporting stating that the defendant has no defence & the grounds upon which the claim is based)
-Pre Action Counseling Certificate.

Question 6

What happens where the defendant has a defence under summary judgement order 11 & 13?

Answer 6

If it appears to the judge that the Defendant has a good defence and ought to be allowed to defend the claim, 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.

Question 7

How does the Defendant enter his defence for undefended list?

Answer 7

He must enter his defense before 5 days for the date fixed for hearing.

-Notice to intention to defend and -Affidavit in support(disclosing a defence on the merit)

Question 8

What is the effect of a judgment given under undefended list?

Answer 8

-Any judgment given by the court under the undefended list either in default or after hearing the parties, is final and can only be set aside on appeal.

Question 9

Differences between Summary Judgment under order 11 & 13 and Summary judgment under undefended list?

Answer 9

1. Applicable to both Lagos & Abuja, Applicable to just Abuja
2. Can be used for all forms of reliefs and actions. Undefended can only be used for liquidated money demand.
3. Enters appearance within 42(Lag) & 21(ABJ) by filing memo of appearance. Enters appearance 5 days before hearing by filing notice of intention to defend
4. The documents in support
5. Oral evidence are heard under Order 11 & 13. No oral evidence under undefended, just affidavit evidence
6. Summary j under order 11 & 13 applies to both default & summary j. Undefended list applies only to summary

Question 10

What is Default judgment?

Answer 10

. A default judgment is one given where there is default of appearance or default of defence by the defendant

Question 11

Can default judgement be set aside?

Answer 11

Yes, upon an application of the defendant made:
1. Within reasonable time
2. Showing evidence of payment of penalty.
3. Showing just defense to the claim
4. just cause for the default.

Question 12

Can a registrar mark a writ as undefended under undefended list?

Answer 12

NO! it is a judicial function & only the judge can mark the writ accordingly where satisfied that the def has no reasonable cause of action

Question 13

Can default judgment be set aside?

Answer 13

YES!
NON SERVICE
FRAUD
LACK OF JURISDICTION
MON+A+WA
He must also show evidence of payment of the penalty

Question 14

What happens when there is application for default judgment by the claimant and another to regularize by the defendant?

Answer 14

The court will hear that of the defendant even where the claimant has filed an application for judgment in default of appearance or defence. This is because where there are two pending applications, of which one is constructive to regularize the proceedings and the other destructive to enter default judgment, the court will hear the constructive one to regularize and it does not matter which one was filed and served first
NALSA TEAM ASSOCIATION V NNPC

Question 15

Factors the court will consider in an application to set aside default judgement?

Answer 15

1. The reason for applicant’s failure to appear when the case was heard
2. Whether there has been delay in making the application to prejudice the respondent
3. Whether the respondent would be prejudiced or embarrassed upon an order for rehearing
4. Whether the applicant’s case is manifestly unsupportable

Question 16

Procedure to set aside default judgment?

Answer 16

1. Apply to the court for extension of time within which to file his processes.
2. The application is by MON+A+WA
   out the reason for the delay.
3. Proposed copies of the proper processes (SOD, Witness Statement etc.) to be attached to the application.
4. Pay penalty of N1000 for every day of the default.

Question 17

What orders can a defendant who has defaulted in entering appearance make?

Answer 17

“AN ORDER for extension of time within which the defendant may enter appearance in this matter”

“AN ORDER deeming the memorandum of appearance as properly filed and filing fees paid”