This commentary highlights the duty to challenge facts in an affidavit. Concisely, MR. ANDY ERO (the “Appellant”) obtained loan facilities at the total sum of ₦33. 826 million from MR. JUDE ANEGBEODE (the “Respondent”). The Appellant’s Counsel declined to challenge the application for summary judgment before the High Court of Justice, Edo State.
Consequently, the High Court of Justice, Edo State, ordered the Appellant to pay the loan facility to the Respondent. The Respondent cried wolf to the Court of Appeal for violating the fair hearing principle. Still, the Court of Appeal dismissed the appeal and affirmed the lower Court’s decision.
Background
The appeal was against the Hon. Justice D. I. Okungbowa’s judgment at the High Court of Justice, Edo State, delivered on 19th January 2017.
Following the Respondent’s summary judgment application filed ten months after the suit commenced. The Appellant rightly received the application through his Counsel, whose Counsel never challenged facts in the affidavit supporting the summary judgment.
In fact, at the hearing of the summary judgment application, the Appellant’s Counsel enjoined the Hon. Justice D. I. Okungbowa to exercise its discretion one or the other – a submission to the jurisdiction of the Court.
However, the Appellant cried wolf to the Court of Appeal when it challenged the judgment of the High Court of Justice, Edo State, which commanded the Appellant to pay the outstanding loan sum of ₦33. 826 million to the Respondent.
Indeed, Greenway Investment Limited used the loan facilities to finance its Excravos/Lagos (EPL II) pipeline construction project. Greenway Investment Limited is the Appellant’s company, and the Appellant is its Managing Director.
Although the Appellant’s Counsel filed a Memorandum of Appearance, it failed to file any defence in response to the suit or the summary judgment application.
J. Jones Esq was the Appellant’s Counsel before the High Court of Justice, Edo State. In response to the summary judgment application, he stated, “We leave it at the discretion of the Court”.
Therefore, the Court exercised its discretion when it directed the Appellant to pay the loan facility to the Respondent because J. Jones Esq did not challenge the facts in the affidavit supporting the application for summary judgment.
It is worth noting that the Rules of Court guide the Court, and a party who has slept on his right under the rules cannot complain about the exercise of discretion by the Court.
Every lawyer knows that he enjoys the duty to exercise utmost dedication to his client’s cause. Rule 14(1), Legal Practitioners’ Rules of Professional Conduct 2023, provides that a “lawyer shall devote his attention, energy, and expertise to the service of his client and, subject to any rule of law, act in a manner consistent with the best interest of his client.”
Conclusion
The Appeal Court found that the Appellant’s Counsel’s resolution to leave the matter of procedural regularity or factual correctness to the Court’s discretion is a waiver of the Appellant’s right to object to the application and/or admission of the Respondent’s application for summary judgment.
Therefore, the Appellant’s Counsel has no right to complain about how and how the trial Court decided the application.
Significantly, parties to the Court should promptly challenge all material facts or remain silent – forever.
A person who benefits from a statutory provision that confers a private right or protects a private interest can waive it – the right to appeal is a private right.
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