The ManicaPost
Trust Maanda
Post Correspondent
EVERY person who is sued in a court of law has a right to be heard in his or her defence.
The right to a fair trial and to be heard is a constitutional right.
The rules of the court give effect to how this right is exercised. Procedure has to be followed in the institution or defence of legal proceedings.
One of the procedures is the procedure of summary judgment.
Summary judgment is an order that may be prayed for by a plaintiff in legal proceedings against a defendant, in a claim which is unanswerable and where the plaintiff views the defendant as defending the claim solely for the purposes of delay, where the defendant does not have a bona fide defence which is seriously raised to defeat the claim.
In that case, the plaintiff claim is granted summarily, without going to trial.
Depending on whether it is the Magistrate’s Court or High Court in which the claim is pending, the rules of these courts provide for the timelines for the filing of such an application for summary judgment.
In the High Court, an application for summary judgment can be made at any time before a trial begins.
If it emerges at any time that the defendant’s defence is a sham, there is every reason for a plaintiff to make an application for summary judgment at that stage.
A court application for summary judgment shall be supported by an affidavit made by the plaintiff or by any other person who can swear positively to the facts set out therein, verifying the cause of action and the amount claimed, if any, and stating that in his or her belief there is no bona fide defence to the action.
In the Magistrate’s Court, summary judgment is applied for within a number of days after the defendant has filed a document that signifies that he or she intends to defend the claim in the summons.
The grounds for summary judgment are basically the same in the High Court or in the Magistrate’s Court. If upon service of summons on the defendant, the defendant signifies that he or she intends to defend the matter, the plaintiff can apply for summary judgment.
The plaintiff should essentially allege two grounds for seeking the relief.
He or she must allege that the defendant has filed appearance to defend for the purposes of delay and that he or she has no bona fide defence with prospects of success if the matter is allowed to go all the way to trial.
Summary procedure is designed to thwart unscrupulous litigants seeking only to delay a just claim by entering appearance to defend.
Because of its importance, the courts do not allow its efficacy to be impaired by technical grounds that may be raised by unscrupulous defendants.
While the courts do not ignore requirements of the High Court rules affecting the basic validity of summons, which are a prerequisite for the granting of summary judgment, too much formalism should not be allowed to defeat or delay a just and clearly obvious claim.
The summary judgment procedure is meant to be simple and straight forward. Parties are not allowed to amend or sever claims at summary judgment as it defeats the whole purpose of having the procedure in the first place.
An applicant is seldom allowed to file an answering affidavit in summary judgment proceedings.
Summary judgment is a drastic remedy in which the plaintiff, whose belief is that the defendant is not bona fide and entered solely for delay purposes, should be granted immediate relief without the expense and delay of trial.
It has far-reaching consequences as it effectively denies the defendant the benefits of the fundamental principle of the right to be heard in a full trial.
But it is also fundament procedure in that it seeks to stop dishonest litigants from abusing the legal process by delaying the inevitable.
Summary judgment can only be granted to the plaintiff when the plaintiff’s case is unanswerable and all defences raised to the plaintiff’s claim are clearly unarguable both in fact and in law.
In order to defeat a claim for summary judgment, the defendant’s defence does not have to be established on the probabilities.
All he or she needs to allege are facts which if pleaded and accepted at the trial, must be sufficient to establish their defence.
In doing so, he or she needs to depose to an affidavit to which they attach any supporting documents which raise an issue or facts that if the matter is allowed to go to full trial, the plaintiff’s claim can be defeated.
Trust Maanda is a legal practitioner and a partner at Maunga Maanda And Associates. He writes in his personal capacity. He can be contacted on +263772432646.
