NATURE OF SUMMARY JUDGMENT: IT’S PURPOSE, PROCEDURE, AND THE DUTY OF COURT UNDER SAME

Litigation in Nigeria can be protracted, costly, and sometimes abused by parties who have no real defence but seek only to delay justice. To curb this, Nigerian civil procedure provides for summary judgment. It is a procedural device designed to enable a court to determine a claim promptly and expeditiously, without delay, where the defendant has no arguable defence.

In order to adequately explore the Nature Of Summary Judgment: It’s Purpose, Procedure, and the Duty of Court Under Same, recourse shall be made to the very recent case of O.S.B.I.R. & 2 Ors. v. Sidex Consulting Ltd. (2026) 7 NWLR (Pt. 2042) 309, wherein the 3 Learned Justices of the Court of Appeal (Ibadan Division) reinforced some very fundamental principles thereto.

The detailed but complex fact leading to the commencement of this case at the trial court, which was later appealed to the Court of Appeal, is as follows:

The case of the respondent was that following the appellants’ desire to boost the Internally Generated Revenue (IGR) of the Oyo State Government, the 1st and 2nd appellants resolved to fully harness and maximise the opportunity of receivables from taxation accruable to the Government. In furtherance of the appellants’ expressed desire, on 10/4/2017, the appellants, through the 1st appellant engaged the services of the respondent to provide amongst others, revenue collection services for and on behalf of the Oyo State Government, and also agreed to pay the respondent 15% commission on the revenue generated, which terms of engagement were documented in the ‘Consultancy Agreement on Global Revenue Enhancement’ and executed by the representatives of the respondent and those of the Oyo State Government, through the 1st appellant.

However, whilst the respondent kept its side of the bargain and generated huge sums of money as internally generated revenue for the appellants, the appellants, particularly the 1st appellant, failed to adhere to the agreement by their failure to pay the respondent’s fees due to it, as a result of which, as at the month of October 2019, the outstanding indebtedness of the 1st appellant to the respondent stood at N276,779,112.79 despite several invoices and demands for payment.

Surprisingly, rather than pay the respondent the sums owed to it, the appellants vide a letter dated 24/9/2019, unfairly and without any justifiable basis, terminated the Agreement with effect from 31/10/2019, and when attempts to settle the matter amicably failed, the respondent instituted an action at the High Court to recover the sums due to it and special damages against the appellants.

On their part, the appellants vehemently denied the claims of the respondent and maintained that it had neither any formal agreement with the respondent, as the one being relied upon was a product of fraud, nor committed themselves to paying 15% commission to the respondent, and therefore, the respondent’s claims were frivolous and not maintainable.

On 9/7/2021, the respondent filed along with the originating process, a motion on notice for summary judgment, supported with an affidavit and a written address. In response, on 30/9/2021,the appellants filed their statement of defence and on 17/5/2022, they also filed a counter-affidavit in opposition to the respondent’s application for summary judgment together with their written address. On 21/11/2022, the respondent filed a further affidavit and written reply address.

On 24/11/2022, the High Court heard the respondent’s application for summary judgment, and on 17/2/2023, it delivered its judgment, in which it granted the respondent’s relief A, awarding the sum of N276,779,112.79, and set down the claims for special damages for hearing.

Dissatisfied with the ruling of the High Court, the appellants appealed to the Court of Appeal and contended among others that the High Court deprived them of their right to fair hearing by granting an order of summary judgment against the appellants.

In determining the instant case, with regards to the purpose of summary judgment procedure, the Court of Appeal held that:

“Summary judgment procedure, which is akin to the undefended list procedure, is usually aimed at dispensing with dispatch cases and or claims which are virtually uncontested and or cases where there can be no reasonable doubt that a claimant is entitled to judgment and it is inexpedient to allow a defendant to defend for mere purposes of delay. It is designed to secure quick justice and avoid the injustice likely to occur when there is no genuine defense on the merits to the claimant’s case. It is to shorten the hearing of a suit where the claim is for liquidated sum. Thus, it is for the plain and straightforward cases to the joys and the interest of justice and not for the devious and crafty defendant whose joy to unnecessarily delay the payment of his just debt is timely cut short by due process of law.”

Using the above as a foundation and building on it, the following are a simple highlight of the purposes of summary judgment:

Expeditious Justice: It prevents unnecessary delay by ensuring that cases without substance do not go to full trial. This aligns with Section 36(1) of the 1999 Constitution which guarantees fair hearing within a reasonable time.

Filtering Sham Defences: It weeds out defendants who file defences solely to postpone liability, especially in debt recovery actions by banks and commercial entities.

Judicial Economy: It saves court time and resources, allowing judges to focus on genuinely contentious matters. Hence, the procedure prevents the court from being used as an instrument of delay.

Moving on, it is important to state that summary judgment procedure is provided for in the various High Court Civil Procedure Rules of the 36 States and the Federal Capital Territory. Though wording differs slightly, the substance is uniform. Generally, the procedure of summary judgment goes thus:

Commencement: A claimant who believes the defendant has no defence to the claim files a Motion on Notice for summary judgment. The motion must be supported by an affidavit verifying the cause of action, the amount claimed, and stating that in the deponent’s belief there is no defence. Exhibits, if any, such as contracts, invoices, cheques, or statements of account, inter alia, are annexed.

Service and Response: The defendant, upon service, has some duration to file a Statement of Defence in response to the Claim, and a Counter-affidavit and a Written Address in opposition to the said Motion on Notice for summary judgment. The defendant’s affidavit must not merely deny. It must condescend upon particulars and disclose facts which, if proved, would constitute a defence in law.

Hearing: The application is argued based on affidavit evidence, and the court considers/determines whether the defendant has raised a triable issue or disclosed an arguable defence.

Upon such consideration or determination by the court, the court either:

Enter Judgment: If satisfied that there is no defence, the court enters judgment for the claimant;

Grant Leave to Defend: If a triable issue is disclosed, the court transfers the suit to the general cause list for full trial; or

Enter Partial Judgment: Where defence exists for part of the claim, judgment is entered for the admitted part and leave granted for the rest.

Furthermore, in the instant case, the 3 Learned Justices, in their erudition, elaborately emphasised on the duty of court under summary judgment procedure, thus:

“Under the summary judgment procedure, the very straight forward, and very simple uncomplicated procedure, is that upon hearing the motion on notice for summary judgment, the court would ascertain if on the facts as placed before it the defendant had made out any triable issue or a good defence. However, in arriving at such a finding, the court would critically securitize and examine the affidavits and documentary exhibits, if any, of the parties to determine at that stage if the defendant has disclosed any defense or raised at least triable issue that would need to be further enquired into by the court by way of a full hearing. Where the court finds that the defendant has not disclose any good defense or raised any triable issue, the court is under a duty to proceed to enter judgment in favor of the claimant against the defendant, no more no less. However, where the counter-affidavit of the defendant, in opposition to the claimant’s motion on notice for summary judgment, discloses either a good defence or triable issues or if there are substantial conflicts as to the facts of the case on the affidavits and counter-affidavit, and documentary evidence if any, of the parties, it would be sufficient for the court to hold that the defendant has raised a triable issue as would require further enquiry and thus, grant leave to the defendant to defend the claims of the claimant at trial at full plenary in which the contending rights of the parties would be enquired into and decided by the court on the merit on the evidence as would be put forward by them at the trial. In the instant case, both the appellants and the respondent were duly heard, and their respective cases were duly considered by the trial court before it reached the conclusion that in respect of relief A only, the appellants neither disclosed any defense or triable issue to warrant the transfer of the respondent’s claim in relief A, against the appellants for trial at plenary.”

Flowing from the above, it is, therefore, clear that under summary judgment, it is the duty of courts to scrutinize affidavits, ascertain triable issues, uphold fair hearing, and give concise reasons for either granting or refusing the summary judgment.

To sum up everything that has been stated hitherto, summary judgment is a vital procedural tool in the Nigerian legal system. Its procedure is affidavit-driven and designed to deliver swift justice in undefended debt claims. Its purpose is to prevent the abuse of court process through sham defences while conserving judicial time. The court’s duty under the procedure is to act as a vigilant gatekeeper; ensuring that only cases devoid of triable issues are summarily determined, and that the constitutional right to fair hearing is not sacrificed on the altar of speed. When properly applied, it reinforces the principle that justice delayed is justice denied, but justice hurried is justice buried.

About the Author: Hisbullah Sarkibaba is a Senior Advocate of Bayero University, Kano (SABUK), holds an Associate Certificate in Islamic Banking and Finance (ACIBF), and is the Director of Research and Litigation, Solace Chambers, Bayero University, Kano. He can be reached via 08163807626.