NASCO TOWN PLC & ANOR v. MR. FESTUS UDE NWABUEZE
(2014) LCN/6993(CA)
RATIO
PRACTICE AND PROCEDURE: DIFFERENCE BETWEEN A SUMMARY JUDGEMENT AND DEFAULT JUDGEMENT
Before I go into the meat of the matter, I need to clear some misconceptions thrown up by the Respondent, which has muddied up the waters, so to speak. Firstly, a summary judgment is not the same as a default judgment, which is a Judgment rendered in consequence of the non-appearance of the Defendant. A default judgment is entered upon the failure of a party to appear or plead at the appointed time – see Akinriboya v. Akinsole (1998) 3 NWLR (Pt. 540) 101.
Such Judgment, based solely on default of pleadings or non-compliance with the rules of procedure, is not one on the merits and can, on good grounds being shown, be set aside by the Court upon an application by the Defendant – see Adeloye V. Olona Motors (Nig.) Ltd. (2002) 8 NWLR (Pt. 769) 445 and Malgwi V. Gadazama (2000) 11 NWLR (Pt. 678) 258.
A summary Judgment is one that is given in favour of a Plaintiff without a plenary trial of the action. Although not preceded by a trial, a summary Judgment is one on the merits. As Nwadialo explained in Civil Procedure in Nigeria: 2nd Ed., this is because a summary Judgment is based on want of defence to the Plaintiffs claim by the Defendant, and a full trial of the action cannot alter this situation. A summary Judgment, therefore, unlike a default Judgment, cannot be set aside by the Court that granted it or any Court. It is only on appeal that this can be done. There are different summary Judgment procedures provided for in the High Court Rules, and this includes Summary Judgment under Order 11 of the Lagos State High Court Rules, which stipulates that a Claimant shall file with his originating process, the statement of claim, the Exhibits, the dispositions of his witnesses and an application for Summary Judgment, which shall be supported by an affidavit stating the grounds for his belief, and a written brief also. Per Amina Adamu Augie, J.C.A.
