A client entered into a transaction for the purchase of machines to be used in his Engineering firm. Two months into his purchase of the machines, the machines developed faults and stopped working. The seller promised to work on the machines and possibly change them. This he did but they all packed up two weeks later.
The client demanded his money sum from the seller who constantly promised to pay him. This lingered for about two years before they signed an agreement on how the payment of the money sum would be made. The seller reneged on the agreement and our clients got the police involved to recover his money from the seller.
Few months after the Police intervened, the seller disappeared from reach, before the matter was taken to court. Observing closely the nature of the case, we brought an action by way of Summary summons under the Magistrate Court rules as the monetary sum was about five million, five hundred thousand Naira (₦5,500,000.00).
Summary summons is a procedure of recovering liquidated money demands with or without interest. A Claimant who has a claim for a debt or liquidated money demand with or without a claim for interest may file a Claim to the Magistrate's court and by a letter request the Registrar to endorse the claim as summary summons.
Why use the magistrate court? The Magistrate Court being a court of summary jurisdiction and guided by the provisions of the Magistrates' Court (Regulatory Enforcement Procedure) Rules 2009, provides that matters are dispensed with urgency. Summary summons is one of the modes of commencing an action in the Magistrate Court. This is provided for under Order 3 Rule 1 - 10 of the Magistrates' Courts (Civil Procedure) Rules which provides;
1. In any action in a Magistrates' Courts for a debt or liquidated money demand, with or without a claim for interest, the Claimant may file a claim and request by letter to the Registrar for the endorsement of the claim as a summary summons:
Provided that no summary summons shall be issued-
(a) against an infant or a person of unsound mind or a person adjudged as a lunatic;
(b) to recover money lent by a money lender within the meaning of the Money lenders Law, or interest on money so lent, or to enforce any agreement made or security taken in respect of money so lent;
(c) on behalf of an assignee of a debt or other thing in action;
(d) to recover money secured by a mortgage or charge; or
(e) against a defendant who has to be served outside the jurisdiction.
2. The Registry shall endorse the claim to issue a summary summons.
3. (1) A defendant in a summary action, who disputes his liability for the whole or part of any claim or desires time for payment or desires to set up a counterclaim, shall within five (5) days of the service of the summons on him, inclusive of the day of service, deliver to the Registrar-
(a) the form appended to the summons completed according to the circumstances of his case and stating the address for service and signed by him or some other person on his behalf; or
(b) a defence or an admission and a request for time for payment (in this Order called an admission) or a counter claim, signed and accompanied by as many copies as there are claimants.
(2) Where the defence is tendered before action, the provisions of Order 2 Rule 8 shall apply.
4. (1) If the defendant does not within five (5) days of the service of the summons on him, inclusive of the day of service, pay into the court the total amount of the claim and costs or deliver at the Registry of the Court, a defence or an admission or a counterclaim, the service being duly proved, the Claimant may have judgment entered against the defendant for the amount of the claim and costs, and the order shall be for payment immediately, or at such time or times as the Claimant may request:
Provided that if the defendant delivers at the court office a defence or an admission or a counter- claim after the said period of five (5) days has expired and before judgment has been entered, judgment shall not be entered under this paragraph but the procedure prescribed by Rule 5 or Rule 6 of this order shall be followed.
(2) A judgment in default under this Rule for payment need not be drawn up or served, unless the judgment is for payment to the Claimant or his legal practitioner, or unless the Claimant has abandoned part of his claim and such be forwarded to the designating Magistrate for assignment.
5. If within the period of five (5) days prescribed by Rule 3 of this Order, or before judgment has been entered, the defendant delivers at the registry of the court, a defence not accompanied by an admission of any part of the claim or delivers a counterclaim, the Registry shall fix a day for the trial of the action and shall give not less than five (5) clear days notice to the Claimant a copy of the defence, if any as to part of the claim.
6. (1) If within the period of five (5) days prescribed by Rule 3 of this Order, or before judgment has been entered, the defendant delivers at the Registry of the court an admission of the whole or part of the Claimant's claim, not accompanied by a counter- claim, the Registry shall upon the receipt of the admission, send notice of it to the Claimant annexing a copy of the defence, if any, as to part of the claim.
(2) If the Claimant elects to accept the amount admitted in satisfaction of his claim and the proposal as to mode of payment, he shall, within five (5) days of the receipt of the notice of admission, send notice of acceptance to the Registry, and judgment shall be entered accordingly as soon as practicable if the Magistrate is satisfied that the admission bears the defendant's signature.
(3) If the Claimant does not elect to accept the amount admitted or the proposal as to mode of payment, he shall, within five (5) days of the receipt of the notice of admission, send notice of non-acceptance to the Registry who shall-
(a) if the whole claim is admitted, fix a day (in these Rules called the day fixed for the disposal of the action) on which the action will be disposed of and the decision of the court will be given as to the date of payment or the installments by which payment is to be made, and not less than five (5) clear days' notice of the day so fixed shall be given to the Claimant and to the defendant; or
(b) if part of the claim is admitted, fix day for trial of the action and give not less than five (5) clear days' notice to the Claimant and the defendant.
7. If the Magistrate is satisfied that the defendant when he delivered his admission intended to dispute the whole or any part of the claim or to set up a counter- claim, he may give the defendant permission to defend the action or to set up a counter-claim, on such terms as to costs or otherwise as he thinks fit, and if he gives such permission, he shall fix a day for the trial of the action and give notice of it to the Claimant and the defendant.
8. Where three (3) months have expired from the date of service of a summary summons, and
(a) no defence or admission or counter-claim has been delivered and judgment has not been entered against the defendant; or
(b) an admission has been delivered but no notice of acceptance or non acceptance has been received from the Claimant by the Registrar who shall forward same to the Magistrate in chambers, the action shall be struck out and no extension of time shall be granted beyond the three (3) months.
9. A summary summons which has not been served may at the request of the Claimant, be exchanged after the payment of the prescribed fees for an ordinary summons within the three (3) months of the issue of the summons.
10. Rules 6 and 8 of Order 2 shall apply to an action in which a summary summons has been issued as they apply to an action in which an ordinary summons has been issued.
Guided by the rules stated above, the registrar issues a summary summons guided by Order 3 Rules 1 (a) - (e) of the Magistrates' Court (civil Procedure) Rules 2009.
Summary summons at the Magistrate Court is a faster means than the regular writ of summons or originating summons at the High Court.
What a legal practitioner must show in a claim for summary summons :
1. Make your application by way of Summary summons and give details as to the particulars of the claim.
2. The application must show that the debt or money demanded is liquidated.
3. The claim should contain evidence of monetary payment made to the defendant alongside request for payment of money owed by the defendant.
4. Attach an affidavit to your application stating particulars of the case.
5. Attach Exhibits in support of the application.
Upon the said application being heard in court, the court gives a ruling on the case which becomes a judgment of the court.
Where the defendant refuses to appear, the judgment is a default judgment. on the other hand, where the defendant appears, judgment is given for the part admitted or denied, all in the interest of Justice.
Labels: claim, claimant, court, debt, defendant, judgment, liquidate, magistrate, money, Summary, summons
