Nigerian Law School

Yenagoa Campus
Civil Litigation Department
Week 7: February 01, 2022
Summary Judgment Procedure
(A Synopsis)

Summary Judgment procedure is the procedure adopted in any case or claim in Lagos where the
Claimant believes the defendant has no defence to the action or when (in Abuja) it is a case of
liquidated money demand or recovery of debt where the Plaintiff believes the defendant has no
defence to the action. Summary judgment procedure is mainly used for recovery of simple debts
and liquidated money demands. It is adopted to save time, cost and accelerate the process of debt
recovery, and to avoid going through full trial, since there is almost always no defence to the
action, or so the claimant believes. In summary, a summary judgment is one given without going
through full trial. It is usually given where the court finds that the defendant has no defense to the
claim. Sometimes, a summary judgment may be given even without pleading being filed – e.g.,
the Undefended List procedure in Abuja.

 Types of Summary Judgments:

1. Summary Judgment under the undefended list.
2. Summary judgment under Order 11 Lagos
3. Summary Judgment on admission
4. Summary judgment on application for accounts
5. Consent judgment – this is a special type of summary judgement -- See Ras Pal Gazi v.
FIDA

A:
 Summary Judgment under Order 13, Lagos or Under Order 11, Abuja

Applicable Laws:

 Order 13, of the Lagos High Court (Civil Procedure) Rules 2019,
 Order 11, High Court of the FCT Abuja (Civil Procedure) Rules, 2018
 Case Law

Uses:
 Order 11, Lagos, may be resorted to in any claim where the claimant believes that the
defendant has no defense to the action. So the procedure may be adopted even when
dealing with any other matter/claim other than recovery of debt or liquidated money
demand, as long as there is belief that the defendant has no defence.

Documents the claimant will file in court to commence an action under Order 13, Lagos are:

1. Writ of summons;
2. Statement of claim;
3. List of Witnesses;
4. Witness Statement on Oath;
5. List and Copies of documents to be relied upon
6. Motion on Notice for summary judgment

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 7. Affidavit in Support of the Motion
8. Written Brief in support of Motion on Notice
9. Pre-action Protocol Form 1

Procedure Under Order 13:

1) In any claim in which the claimant believes that the defendant has no defence to the
action, the Claimant would file the following documents at the Lagos State High Court:
i. Writ of summons;
ii. Statement of claim;
iii. List of Witnesses;
iv. Witness Statement on Oath;
v. List and Copies of documents to be relied upon
vi. Motion on Notice for summary judgment
vii. Affidavit in Support of the Motion -- this affidavit must state among others, that in the
claimant’s belief, the defendant has no defence to the action. See Enuma v
Consolidated Discounts Ltd
viii. Written Brief in support of Motion on Notice
ix. Pre-action Protocol Form 1

2) These originating processes are then served on the Defendant within 6 months, in line with
Order 8, Lagos.

3) Where the defendant believes he (the defendant) has no defence to the action, he need not
do anything. If he does nothing (after having been duly served with the originating
processes), the court will hear the Application for Summary Judgment and give judgment
against the defendant. However, where the defendant intends to defend the suit, he is
required to file the following documents in court within 42 (forty-two) days from the date
he (the defendant) was served with the Claimant`s originating processes: Documents the
Defendant will file include:

(i) Memorandum of Appearance.

(ii) Statement of Defence.
(iii) List of Witnesses.
(iv) Statement On Oath of Witnesses.
(v) List and copies of documents to be relied upon.
(vi) A counter affidavit in reply to the Claimant`s Affidavit in Support.
(vii) Written Brief in reply to the Claimant`s Written Brief.

4) The application for summary judgment will then be fixed for hearing and heard. If after
hearing both parties, the judge finds that the defendant truly has NO defence to the action,
the judge will enter judgment for the Claimant. However where the judge finds that the
Defendant has good defense (defence on the merit), the judge will grant the defendant
leave to defend, and the matter would proceed to trial in accordance with the Rules of
Court. Leave to defend may be Conditional or Unconditional. Note that there is no right of
appeal against an Unconditional leave to Defend: section 241(2)(a) Constitution of the
Federal |Republic of Nigeria, 1999. NBN v. Weide. If the defendant files a defence but
fails to appear in court, the court should consider the documents. See also Order 6 Rule 4,
Lagos and order 4 Rule 4, Abuja

5) Where the judge finds that the defendant has a defence to only a part of the claim, the
judge will (a) grant the Defendant leave to defend that part of the claim and (b) enter

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 judgment for the Claimant in respect of the other part to which the defendant has no
defence.

6) Where there are several defendants, the judge will grant leave to defend to those who have
a good defence and enter judgment for the Claimant against those who in the judge’s
opinion, have no defence.

7) Judgment obtained under this procedure either after hearing all the parties or after hearing
only the Claimant where the Defendant failed to file a defence or to enter an appearance
after he had been duly served with the Claimant`s originating processes, is a judgment on
the merit, which cannot be set aside by the the trial court, except on grounds of FRAUD,
NON-SERVICE or LACK OF JURISDICTION. See Iron Products v. SAC Ltd; UTC v
Pamotei; ACB V GWAGWALADA.

NOTE:
Summary judgment procedure under Order 13, Lagos is exactly the same as Summary Judgment
Procedure under Order 11, Abuja, save for the following minor differences.

 Differences between Order 13, Lagos and Order 11, Abuja

1) In respect of originating processes, list of witnesses is mandatory in Lagos, unlike in Abuja

2) List of documents to be relied upon, is mandatory in Lagos, unlike in Abuja
3) In Abuja, a party who has filed a written brief has an opportunity to expatiate on the Brief
during hearing
4) Pre-action protocol is filed in Lagos unlike Pre-action Counselling Certificate in Abuja
5) Order 11, Abuja regulates this very procedure unlike in Lagos where it is under Order 13.

B.
Summary Judgment Under the Undefended List (Order 35, Abuja)

Applicable Laws:

1. Order 35 High Court of the FCT Abuja (Civil Procedure) Rules, 2018
2. Case Law

Uses:

This procedure can be resorted to where the following conditions must be satisfied:

(a) The matter/claim must be for recovery of debt or liquidated money demand; and
(b) The plaintiff must believe that the defendant has no defence to the action.
See generally Denton-West v. Momah

Procedure:

1) Where the claim is for recovery of debt or other liquidated money demand and the
Claimant believes the Defendant has no defence to the action, then the shall commence the
action by filing the following in the FCT High Court:
i. Writ of Summon
ii. Affidavit in Support --- which must set out the facts of the case and grounds, and
in addition must state that in the Claimant`s belief, the defendant has no defence to
the action

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 iii. Pre-Action Counselling Certificate -- this is not expressly mentioned in Order 35,
but considering the purpose of the Certificate, it should be attached, at least to
show that the Lawyer had, before filing the suit, advised his client on the relative
strength and weakness of the suit; it is a sort of protection for the lawyer, to
indicate he had discharged his preliminary professional responsibilities before
filing)

2) The judge will examine the papers in Chambers and if satisfied, will make an order fixing
the suit for hearing under the Undefended List.

3) The (i) Writ of Summons, (ii) affidavit in support together with (iii) the Court Order will
then be served on the Defendant

4) Where Defendant has no defence to the action, he need not do anything. However, where
the defendant believes he has a good defence, he is expected to file the following
documents “before five days to the date fixed for hearing” :

a) Notice of Intention to Defend; and

b) An affidavit disclosing a defence on the merit -- See Edem v Canon BaLL Ltd
c) Pre-Action Counselling Certificate

See generally Bullet International v Adamu

5) On the date of hearing, if the court finds that the defendant has no defence on merit, the
court will enter judgment in favour of the Claimant. On the other hand, if the court finds
that the defendant has a good defence, the court will:

a) grant the defendant (Conditional or Unconditional) Leave to Defend,

b) transfer the suit to the Ordinary Cause List; and
c) Order Pleadings or proceed to hear the matter without further pleadings;

NOTE: Examples of good defence:

i. Substantial contentious questions of fact to be tried
ii. Facts which cast doubt on the claimant’s case
iii. Alleged misrepresentations by the claimant
iv. Set-off or counter-claim
v. Facts alleged by the claimant entitle the defendant to interrogate the claim or the
claimant’s witnesses, etc

6) Where the Defendant does nothing -- that is, fails to file any papers after having been duly
served, or the defendant filed but the judge refuses to give the defendant leave to defend,
the judge will hear the case as an Undefended Suit and enter judgment accordingly. But at
this stage, the judge is entitled to call for hearing or oral evidence as the judge may deem
necessary. See bature v Savannah Bank
7) Judgment obtained under this procedure either after hearing all the parties or after hearing
only the Claimant where the Defendant failed to file a defence after he had been duly
served with the Claimant`s originating processes, is a judgment on the merit, which cannot
be set aside by the the trial court, except on grounds of FRAUD, NON-SERVICE or
LACK OF JURISDICTION. See UAC v Anglo Candian Cement; Leventic v Mbonu

DIFFERENCES BETWEEN SUMMARY JUDGMENT UNDER ORDER 13, LAGOS &

SUMMARY JUDGMENT UNDER THE UNDEFENDED LIST (ORDER 35), ABUJA

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 1. Oder 13 may be used for any claim provided the Claimant believes the defendant has no
defence to the action. On the other hand, two conditions must be met before one can use
the the Undefended List, Abuja: (a) the plaintiff believes that the defendant has no defence
and (b) the claim is for recovery of debt or other liquidated money demand
2. The documents filed in court to commence the action are different: In Abuja, only two or
three documents are filed while in Lagos, one has to file at least nine;
3. The documents the defendant is expected to file for his response are different in both
jurisdictions;
4. Application for summary judgment under Oder 13 must be by Motion on Notice. Under
the Undefended List, it is made Ex Parte
5. Time within which the Defendant must respond to the originating processes is different:
Under Order 13, he has 42 days from the date of service on him of the originating
processes; Under the Undefended List, he has “before 5 days to the days to the date of
hearing.”
6. Under the Undefended List, the Order to list the matter for hearing under the
UNDEFENDED LIST is made by the judge before the originating processes are served on
the defendant. Under Order 13, the processes are served on the defendant before the
hearing of the application for summary judgment;
7. Differences in terminology: Undefended List in Abuja; Summary Judgment Under Order
13 in Lagos;
8. The orders the court may make after hearing the parties and finding that the defendant has
a defence on the merit: Under Order 13, The orders the court may make include (a) grant
leave to the Defendant to defend the action (b) make an order that the matter should
proceed to trial. In Abuja, under the Undefended List, the order the court may make in
such a case are: (a) Leave to the Defendant to defend (b) Order that the parties should file
and exchange pleadings (c) Order transferring the case from the undefended list to the
ordinary cause list, and (d) order that the matter should proceed to trial.
9. Undefended List procedure in Abuja is governed by Order 35 of the FCT High Court
(Civil Procedure) Rules, 2018; In Lagos, summary judgment is governed by Order 13 of
the High Court of Lagos (Civil Procedure) Rules, 2019
10. Pre-action notice is mandatory in Lagos, for any action, unlike in Abuja where the Pre-
action counselling is only desirable.

 Default Judgment

Is a judgment obtained/given without the other party’s participation.

 Types Of Default Judgments

1) Judgment in default of Appearance - entered for failure of the defendant to enter an

appearance
2) Judgment in Default of Pleadings/Defence -- entered for failure of the defendant to file his
defence

 Setting Aside a Defualt Judgment

1) APPEARNACE: In Lagos, judgment obtained in default of Defendant’s appearance may be

set aside on the application of the defendant for good cause shown. See Order 12 Rule 9,
Lagos; Order 10 Rule 11, Abuja.

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2) DEFENCE: Judgment obtained in default of defence may not be set aside by the same court
except on grounds of FRAUD, NON-SERVICE or LACK OF JURISDICTION and on such
terms as the court may deem fit. See Order 22 Rule 12, Lagos; Order 21 Rule 12, Abuja.
See Emordi v Kwentoh
 Matters To Consider In An Application To Set Aside A Default Judgment (see
Mohammed v Husseini)

1. Reason for failure to appear

2. Whether there has been an undue delay. Delay defeats equity. Equity aids the vigilant, not the
indolent.
3. Whether the party in whose favour the judgment was given would be prejudiced by the
application or granting the application
4. Whether the applicant’s case is manifestly unsupportable
5. The applicant’s conduct --- he who seeks equity must do equity. He who comes to equity
must come with clean hands
See generally Sokoto State v. Kamadak

 DIFFERENCES BETWEEN A DEFAULT JUDGMENT AND A SUMMARY

JUDGMENT

a) Default Judgment : given where the defendant fails or neglects to file a defense or to enter an
appearance or for some reason (especially during Pre-Trial Proceedings) fails to cooperate
with the presiding judge. For the latter situation, see Order 27 Rule 5(b), HCLSCP Rules,
2019 (Lagos Rules) Summary Judgment: judgment obtained without full trial only because
the defendant has no defense to the claim
b) Reason for summary judgment proceeding is because the defendant has no defence. Reason
for judgment in Default is because the defendant failed, neglected or refused to file his
defence or appearance . See Sodipo v Leminkainem. See Orders 12 and 22, Lagos, Order 10
& 21, Abuja
c) Filing of pleadings is not a pre-condition for summary judgment, in some jurisdictions.
Filing of pleadings is a pre-condition for all Default judgments
d) Summary judgment is a (final) judgment on the merit, unlike the default judgment which may
be liable to be set aside by the trial court save in some instances such as under Order 22 Rule
12, Lagos

 CONSENT JUDGMENT

A consent judgment is a judgment on the merit, and not a judgment entered in default. It is a
judgment issued by a judge/court, based on an agreement between the parties to a suit aimed to
settle/resolve the matter with the aimed of ending the litigation with a judgment that is
enforceable. Thus, where parties to a dispute, freely enter into terms of settlement which is then
made the judgment of the Court, this is called a consent judgment, and it is no longer open to the
Court to adjudicate on the subject matter of the dispute. 

 DIFFERENCES BETWEEN A SUMMARY JUDGMENT AND A CONSENT

JUDGMENT

i. Consent Judgment (CJ) is based on mutual agreement by the parties to the case.
Summary judgment (SJ) is not based on any mutual agreement
ii. CJ is not necessarily because the defendant has no defence. SJ is necessarily because the
defendant has no defence on the merit.
iii. SJ is not appealable save with leave. SJ is appealable without leave

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 iv. CJ may not be set aside by the same court save on grounds of fraud or lack of
jurisdiction. SJ may in exceptional circumstances be set aside by the trial court

 ETHICAL ISSUES -- Ethical Responsibilities of a Lawyer in summary Judgment

1. Diligence -- Rule 16, RPC
2. Devotion and dedication -- Rule 14
3. To always uphold the rule of law -- rules 1 and 15, RPC.
4. Avoid sharp practices -- Rule 27, RPC.
5. Discharge his responsibilities as an officer of the court -- Rule 30, RPC
6. Avoid all situations of conflict of interest -- See Rules 17 and 20, RPC.
7. Duty to advise candidly and honestly
8. Duty to advert his client’s attention to existence of ADR as an alternative to litigation --
Rule 15(3(d)
9. Duty of Professional Secrecy & privilege (Confidentiality) -- Rule 19
10. Duty in respect of taking instructions; not to go to the client’s place for purposes of
taking instructions --Rule 22
11. Duty against advertising and solicitation -- Rules 39 to 46 RPC
12. To observe courtroom etiquette -- Rule 36
13. Address the court properly
14. To not engage in trial publicity -- Rule 33
15. Keep all agreements with client -- Rule 18
16. Avoid use of intermediaries for law practice --Rule
17. Observe the duties of good faith and fairness in relating with professional colleagues in
the case -- opposing lawyers -- Rule 27
18. Do not charge illegally or excessively - Rule 48
19. Observe honesty and fairness in dealing with client’s property or money recovered for
the client --Rule 23.
20. The Cabrank Rule-- Rule 21

The end

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