DISPOSAL OF SUITS BY SUMMARY PROCEDURE Flashcards
WHAT IS THE PURPOSE OF A SUMMARY PROCEDURE?
[Order 36, CPR]
* Trial, as a rule, should precede judgment
* However, under summary procedure, instead of going into trial, there is sought for by the plaintiff a summary judgment
* This procedure is intended to enable a plaintiff with a liquidated claim, to which there is clearly no good defence, to obtain
a quick and summary judgment without being necessarily kept from what is due to him by delaying tactics of the defendant
WHAT ARE THE POLICY CONSIDERATIONS OF A SUMMARY PROCEDURE?
As was held in AAT Holdings Limited v Diamond Shield International Limited, there are two competing legal and policy considerations that arise from disposal of suits by summary procedure:
o Right of access to justice, Article 48 Constitution → The case of a defendant who will be driven from the seat of justice without a trial; and
o Right to fair hearing, Article 50(1) Constitution, with the concomitant right to mitigate delay, as under Article 159(2)(b) Constitution → On the other hand, the case of a Plaintiff who is entitled to an expeditious disposal of their case, especially where the defendant does not have a defence worth trial
PRIMARY BASIS OF SUMMARY PROCEDURE
Article 159(2)(b), Constitution 2010 In exercise of judicial authority, the courts shall ensure that justice is done without undue delay
Section 63(e), Civil Procedure Act The court may, in order to prevent the ends of justice from being defeated, make such interlocutory orders as may appear to the court to be just and convenient
Section 1A and 1B, Civil Procedure Act The court is obliged to ensure just, fair, proportionate and expeditious administration of justice to the parties before it
WHAT ARE THE CONDITIONS FOR A SUMMARY PROCEDURE?
(i) An endorsed plaint must have been served on the defendant
(ii) The endorsed plaint must be supported by an affidavit which must:
a) Verify the facts upon which the claim is based; and
b) State that in the deponent’s belief, there is no defence to the claim or part of the claim in respect of which the
application is made → i.e. the admission is clear and unequivocal
(iii) Summons must be served on the defendant not less than 10 clear days before the return day
WHAT ARE THE AREAS WHERE A SUMMARY PROCEDURE MAY ARISE?
- Where the relief sought by the Plaintiff is for a debt or a liquidated claim, with or without interest (i.e. over a liquidated claim – one that can be arrived at using simple arithmetic) – Order 36, Rule 1(1)(a), CPR
Case of the plaintiff Is a liquidated Claim.
There is no good defence Legible for summary Judgment - Where the claim is for recovery of land, with or without a claim for rent, and mean profits by a landlord from a tenant whose term has expired/determined
a) By notice to quit;
b) Forfeited for non-payment; or
c) For breach of covenant – Order 36, Rule 1(1)(b), CPR
WHAT IS THE APPLICATION PROCEDURE FOR A SUMMARY JUDGEMENT?
- The application for summary judgment has to be made after appearance has been entered but before a defence is filed
- Where the defendant has entered an appearance but not filed a defence, the plaintiff may apply for judgment for:
a) The amount claimed; and
b) Interest; or
c) Recovery of land, without or without rent; or
d) Mesne profits - The claim to be satisfied by summary judgment must be a liquidated claim (Scanhouse Press Limited v Time New Services)
- THE PROCEDURE ORDER 36 CPR WHAT IT STATES
Rule 9 Applications for summary procedure are made by way of a Notice of Motion supported by an Affidavit, as under Form 24, Appendix A
Rule 1(2) The affidavit is to be either sworn by the Applicant’s themselves or a person who can swear positively to the facts verifying the cause of action
Rule 1(3) Notice of not less than 7 days should be given to the defendant
WHAT ARE THE POSSIBLE OUTCOMES OF A SUMMARY PROCEDURE APPLICATION?
- The application should not be dismissed if it falls within the four corners of Order 36 * If no triable issues are raised by the defendant by their replying affidavit and/or statement of defence, in their rebuttal of the plaintiff’s application, the court can give judgment for the plaintiff
- However, the court will not give judgment if:
a) The application is not within the four corners of the Order;
b) That the applicant knew the defendant’s contention entitled him to an unconditional leave to defend the suit; or
c) The defendant has raised triable issues - In such a situation, the court may:
a) Dismiss the application by the Plaintiff with costs (Order 36, Rule 8(2), CPR); and
b) Have the case restored; and
c) Grant the defendant leave to defend the suit, unconditionally or with such terms as to giving security or time of trial as the court deems fit (Order 36, Rule 7, CPR) * The defendant may show, either by affidavit or by oral evidence, that they should have leave to defend the suit (Order 36, Rule 2, CPR)
WHAT HAPPENS WHEN A SUMMARY PROCEDURE IS BROUGHT BY THE GOVERNMENT?
When an application for summary procedure is brought by the Government, the affidavit may be verified by the Attorney
General, stating:
a) To the best of his knowledge and belief, the plaintiff is entitled to the relief claimed; and
b) There is no defence to the action (Order 36, Rule 3(1), CPR) * However, no such action for summary judgment may be made against the Government (Order 36, Rule 3(2), CPR)
WHAT IS THE RECOURSE FOR THE DEFENDANT IN A SUMMARY PROCEDURE?
- Before leave to appear and defend is granted, the defendant must show either by affidavit or by oral evidence that there is a bona fide triable issue of fact or law (Order 36, Rule 2, CPR) * The defendant is not bound to show a good defence on the merits, but should satisfy the court that there was an issue or
question of dispute which ought to be tried
WHAT ARE THE GROUNDS FOR THE DEFENDANT TO PROVE IN SUMMARY PROCEDURE?
- The defendant is at liberty to show, by whatever means they choose, whether by defence, oral evidence, affidavits or
otherwise, that their defence raises bona fide triable issues - Where bona fide triable issues have been disclosed, the Court has no discretion to exercise in regard to the defendant’s
right to defend the suit – precisely the reason why the defendant is entitled to “unconditional leave to defend” - A bona fide triable issue is any matter raised by the defendant that would require further interrogation by the court during
a full trial - A defendant seeking to oppose an application for judgment under Order 36 will have to do so in one of the following ways:
a) On a preliminary technicality;
b) By showing that there is a clear defence;
c) By showing that there is a serious issue of fact to be tried;
d) By showing that there is an arguable point of law;
e) By raising prima facie set-off or counterclaim (in certain circumstances); or
f) By showing the court that for some other reason there ought to be a trial - Where court is satisfied upon application, it may grant conditional or unconditional leave to defend
- If the defendant is granted leave by the court, they shall have the chance to defend the suit and they shall file their defence
within 14 days of the grant of leave (Order 36, Rule 4, CPR) * The court may further require the defendant to deposit security for costs of the application for stay/setting aside the
summary judgement, or, the court may require the defendant to deposit the whole of the substance of the summary
judgement with the court
WHAT ARE CONDITIONAL AND UN CONDITIONAL LEAVE TO DEFEND IN A SUMMARY JUDGEMENT?
CONDITIONAL LEAVE TO DEFEND
* Where conditional leave to defend is granted, it is indicative that the court considers the defence too shadowy or to have little or no substance in it
* The court may require the defendant to give security for costs, or order them to make the payment of the judgment debt into court
10. UNCONDITIONAL LEAVE TO DEFEND
* Where the defendant raises a triable issue on their affidavit, they must not at this stage be shut out, and must have leave to defend
* Mere denials of the plaintiff’s claims are insufficient – the defendant must clearly disclose the nature and extent of the defence in clear language
WHAT IS THE CHEQUE RULE?
- Where goods or services are paid by a cheque or bill of exchange which is subsequently dishonored, the payee is entitled
to summary judgment on the cheque and the defendant is precluded from setting off against the claim or any counterclaim for damages, for example, for breach of warranty on the ground that the goods are defective - The defendant is not entitled to stay execution pending resolution of the cross claims
- The defendant will have to pay first and claim as a cross suit later
- It is only in exceptional cases that the court will depart from the general practice, for example, the defendant who
complains of bad workmanship will have leave to defend up to the amount of his counter-claim in the ordinary way - This rule is one of commercial convenience – cheques are regarded equivalent to cash
- In effect, where goods or services are paid for by cheque, there are essentially two contracts – the underlying contract of
sale, and the independent contract on the cheque itself - The only possible defences allowed in cheque actions are:
a. Fraud;
b. Illegality;
c. Invalidity;
d. Duress; and
e. Total failure of considerationW
