There are 2 other situations where the court can decide a matter without a trial. The object is to dispose of the matter in court as early as possible to save time and costs. There are only 2 separate areas in respect of which summary judgment may be obtained.
(i) Where the relief sought by the Plaintiff is for a debt or a liquidated claim;
(ii) Where the claim is for recovery of land with or without a claim for rent and profits. It is for very straightforward cases.
Applications for Summary Judgment are made by way of Notice of Motion supported by an Affidavit either sworn by the Applicant’s themselves or a person who can swear positively to the facts verifying the cause of action. It must be served upon the defendant. The defendant has a right to respond to that application and show that they have a right to defend the suit.
The court will have several options.
1. It may dismiss the Plaintiff’s application; - what happens is that the case is restored and proceeds as before.
2. To give judgment for the Plaintiff. Usually the court will give judgment if there are no triable issues. Where the court finds that the case is so clear that the Defendant has no case e.g. where goods have been delivered, signed for and there is a dishonoured cheque given, the court should give judgment.
3. To grant the defendant leave to defend the suit either conditionally or unconditionally. When the court takes this position, the court has discovered that these are triable issues but gives conditions.
Order 36 in rule 1(1) provides that applications for summary judgement be made after appearance entered but before defence is filed. This is to avoid late applications for summary judgements. Ideally
s for summary judgements should never be dismissed if the application falls within the four corners of the Order i.e. the prayers sought are the kind of prayers that can be subject of a summary judgement application. What the court should do is either grant conditional or unconditional leave to defend. Where, however, the application does not fall within the four corners of the Order or the applicant knew the defendant’s contention entitled him to unconditional leave to defend the court may dismiss the application with costs to be paid forthwith.
- The defendant is required to show by affidavit or oral evidence that leave to defend should be given. The word “otherwise” has been deleted.
NB: Summary Judgment cannot be issued against the government but the government can apply for summary judgment against a party.
If you have good cause, you can make an application to set aside the summary judgment.
The court can grant summary judgment in default i.e. if you fail to appear. If you fail to file a defence if in 14 days there is no defence the Plaintiff can apply for summary judgment in default of a defence.
If the Plaintiff does not appear, you can strike out for want of prosecution.
Summary judgments are either interlocutory or final.
The judgment will be final if the plaintiff had made a liquidated demand i.e. a specific figure
The court will give an interlocutory judgment (temporary or in between) if the sum sought is an unliquidated claim.
In case of interlocutory judgment the case can proceed to a formal proof hearing where how much damages to be paid are examined. There is no judgment in default that can be obtained against government unless with leave of the court.