LEGAL PRINCIPLE: CIVIL PROCEDURE — Summary Judgment — Principles governing grant of leave to defend
PRINCIPLE STATEMENT
Two principles govern summary judgment: (1) a defendant with no real defence should not be allowed to delay the plaintiff; (2) a plaintiff should not be permitted to shut out a real defence by technical adherence to procedural requirements.
RATIO DECIDENDI (SOURCE)
Per Karibi-Whyte, JSC, in Macaulay v. NAL Merchant Bank Ltd (1990) NLC-1861986(SC) at pp. 57–58; Paras A–B.
"1. That a defendant who has no real defence to the action should not be allowed to dribble and frustrate the plaintiff and cheat him out of the judgment he is legitimately entitled to by delay tactics aimed, not at offering any real defence to the action but at gaining time within which he may continue to postpone meeting his obligation and indebtedness; and 2. That, on the other hand a plaintiff should not be permitted to shut out real (not a sham) defence to an action by his clinging to the assertion that once the defendant has failed to show cause against such plaintiff's application by affidavit as required by Order 10 Rule 3 of Lagos High Court Rules, he is out of Court and must have a judgment signed against him no matter how genuine a defence he has disclosed by means other than by affidavit under that rule of the order."
EXPLANATION / SCOPE
Summary judgment balances two competing principles: (1) preventing defendants with no real defence from delaying; (2) ensuring plaintiffs do not shut out genuine defences through technical compliance. The court must examine whether the defence is real or sham. The rules are procedural aids, not traps. The court has discretion to allow a defence even if the defendant did not strictly comply with affidavit requirements. The principle promotes substantial justice. The court will not allow the procedure to be used oppressively. The defendant must show a bona fide defence. The rule applies to all summary judgment applications. The court will look at the substance, not just the form.
