MR. ANDY ERO V. MR. JUDE ANEGBEODE

Legalpedia Citation: (2025-01) Legalpedia 49767 (CA)

In the Court of Appeal

Holden at Benin

Fri Jan 31, 2025

Suit Number: CA/B/140/2021

CORAM

Muhammad Ibrahim Sirajo Justice of the Court of Appeal

Lateef Adebayo Ganiyu Justice of the Court of Appeal

Asmau Ojuolape Akanbi Justice of the Court of Appeal

PARTIES

ANDY ERO

APPELLANTS

JUDE ANEGBEODE

RESPONDENTS

AREA(S) OF LAW

CONSTITUTIONAL LAW, CIVIL PROCEDURE, SUMMARY JUDGMENT, APPEAL, FAIR HEARING, RULES OF COURT, PRACTICE AND PROCEDURE, PROFESSIONAL CONDUCT

SUMMARY OF FACTS

This case revolves around a loan agreement between the Respondent and the Appellant. The Respondent granted several loan facilities to the Appellant, amounting to a total sum of N33,826,000.00 (Thirty-Three Million, Eight Hundred and Twenty-Six Thousand Naira) for the purpose of completing Greenway Investment Limited’s Excravos/Lagos (EPL II) pipeline construction project. Greenway Investment Limited is the Appellant’s company, and he is its Managing Director.

The Appellant repaid the sum of N2,000,000.00 (Two Million Naira) via a Bank Draft dated February 18, 2015, and undertook to repay the remaining loan on or before December 31, 2015, in a Loan Repayment Agreement dated March 18, 2015. However, the Appellant breached the agreement and failed to repay the loan by the agreed date.

The Respondent filed a suit against the Appellant on April 27, 2016, claiming the sum of N31,826,000.00 (Thirty-One Million, Eight Hundred and Twenty-Six Thousand Naira) being money owed and 10% simple interest from the date of judgment until the entire debt is liquidated. The Respondent also filed an ex-parte application for Summary Judgment alongside the originating processes.

The Appellant was served with the Writ of Summons and Statement of Claim on July 21, 2016. He filed a Memorandum of Appearance on September 19, 2016, but failed to file any defense in response to the suit. On December 8, 2016, the Respondent filed a Motion on Notice for Summary Judgment, which was served on the Appellant on December 21, 2016. The Appellant did not file any Counter-Affidavit in opposition to the Motion for Summary Judgment.

At the hearing of the Application on January 19, 2017, the Appellant’s Counsel, J. Jones Esq., stated: “We leave it at the discretion of the Court.” The Court then exercised its discretion and granted the reliefs sought in the Respondent’s Application as it was unchallenged and the facts in the Affidavit in support were uncontroverted.

HELD

The appeal was dismissed.

The Court held that the trial Court rightly exercised its discretion by granting the Summary Judgment in favor of the Respondent.

The Court found that the Appellant did not avail himself of the opportunity to file a defense within the prescribed time after being served with the originating processes, nor did he file a Counter-Affidavit in opposition to the Application for Summary Judgment.

The Court determined that there was substantial compliance with Order 11 of the Edo State High Court (Civil Procedure) Rules, 2012, entitling the Respondent to the grant of Summary Judgment.

The Court awarded costs of N250,000 (Two Hundred and Fifty Thousand Naira) against the Appellant’s Counsel, Jay Jones Esq., to be paid personally.

ISSUES

Whether the Summary Judgment of the trial Court, where the time prescribed for Defence had not elapsed, amounts to a denial of fair hearing?

Whether the non-compliance of the originating process with the provisions of Order 11 Rule 1 of the Edo State High Court (Civil Procedure) Rules 2012, robs the trial Court of the powers and jurisdiction to grant a Summary Judgment?

RATIONES DECIDENDI

TIME FOR FILING DEFENSE – INTERPRETATION OF ORDER 11 RULE 4 AND ORDER 15 RULE 1(2)

It is clear that the above provision
does not in any way contemplate a response to a motion for Summary Judgment to
take 42 days. I say this because the only process served on the Appellant on
21st December, 2016 was the Motion on Notice dated 7/12/16 and filed 8/12/16.
No Originating Process or Statement Claim was served on that day to warrant the
activation of Order 15 Rule 1 (2) of the Lower Court’s Rules.- Per ASMAU
OJUOLAPE AKANBI, J.C.A.

RIGHT TO FAIR HEARING – OPPORTUNITY TO PRESENT DEFENSE

I
do not find any reason to hold that the trial Court breached the Appellant’s
right to fair hearing. All the cases referred to by the Appellant on this
principle are inapplicable in the instant case. – Per ASMAU OJUOLAPE
AKANBI, J.C.A.

COMPLIANCE WITH RULES – SUBSTANTIAL COMPLIANCE WITH ORDER 11

I agree with the learned Respondent
Counsel that the Respondent complied substantially with Order 11 of the Rules
to entitle him to the grant of Summary Judgment. – Per ASMAU OJUOLAPE
AKANBI, J.C.A.

PURPOSE OF RULES OF COURT – AIDS TO JUSTICE NOT MASTERS OF COURT

Dealing with rules, I am attracted
by what Belgore, JSC said about rules in the case of UTC (Nig.) Ltd. v. Pamotei
(1989) 2 NWLR (Pt. 103) 244 at 296. He said: ‘Rules of procedure are made for
the convenience and orderly hearing of cases in Court. They are made to help
the cause of justice and not to defeat justice. The rules are therefore aids to
the Court and not masters of the Court. For Courts to read rules in the
absolute without recourse to the justice of the cause, to my mind, will be
making the Courts slavish to the rules. This certainly is not raison d’etre of
the rules. – Per ASMAU OJUOLAPE AKANBI, J.C.A.

EXERCISE OF DISCRETION BY TRIAL COURT – GRANTING SUMMARY JUDGMENT

The Appellant had the option of
notifying the trial Court of his intention to defend the suit as stipulated
under Order 11 Rule 4 but he elected not to comply. The trial Court was
therefore right to award Summary Judgment in favour of the Respondent as
claimed in the Statement of Claim, in line with the provision of Order 11 Rule
5(2). The Appellant did not just fail to put forward a good defence, but
equally failed to provide any defence at all. It would appear that the
Appellant who had no defence took a gamble not to submit any defence, instead
chose to employ this Court as a tool to deny the Respondent the benefit of the
Judgment. – Per ASMAU OJUOLAPE AKANBI, J.C.A.

DUTY OF COUNSEL – DEDICATION TO CLIENT’S CAUSE

Counsel not only failed to file a
defence on behalf of his client, he equally did not file a response or react to
the Application duly served on him, rather he chose to cry wolf that the trial
Court exercised the discretion he urged the Court to. A lawyer has the duty to
exercise utmost dedication to the cause of his Client. Rule 14(1) of the Rules
of Professional Conduct for Legal Practitioners, 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 – Per ASMAU OJUOLAPE AKANBI, J.C.A.

SERVICE OF PROCESS – WAIVER OF DEFECTIVE SERVICE

On the issue of non-service of
process, it has to be restated that though service of process is fundamental to
the jurisdiction of the Court, the absence of it or an improper service can be
waived by the defendant who voluntarily, submits to the jurisdiction of the Court
and takes part in the proceedings up to judgment. Such a defendant loses the
right to be heard on a later objection on the basis of service of process on
him. – Per ASMAU OJUOLAPE AKANBI, J.C.A.

PRESUMPTION OF RECORDS – DUTY TO REBUT PRESUMPTION OF GENUINENESS

The Appellant has stated that the
presumption of genuineness of a Record is rebuttable but has failed to rebut
the Records before us. This Court and the parties are therefore bound by the
Records of Appeal. – Per ASMAU OJUOLAPE AKANBI, J.C.A.

ALLEGATION OF DENIAL OF FAIR HEARING – INAPPROPRIATE CLAIMS

It has become habitual for counsel
to allege denial of fair hearing against every decision that does not go in
their favour. The Supreme Court deprecated this desperate practice of parties
in MOORE V. FLOUR MILLS (NIG.) PLC (2022) 11 NWLR (Pt. 1841) P. 365 AT P. 403
thus: ‘I would like to simply add that the claim under issue 2 of denial of appellant’s
right to fair hearing in the dismissal of the appeal after refusal of their
motion for extension to time to file the appellant’s brief in the appeal was
simply a desperate attempt to rake up sentiments on the constitutional
guarantee of the right to a fair hearing under Section 36(1) of the
Constitution (as amended) in the most inappropriate circumstance or
situation. – Per ASMAU OJUOLAPE AKANBI, J.C.A.

COUNSEL’S CONDUCT – FAILURE TO EXERCISE EXPERTISE

The Appellant’s counsel at the trial
Court failed to devote the required expertise to diligently prosecute his
Client’s defence at the trial Court. This is clearly a breach of the duties Jay
Jones Esq. owed his Client and the Court. I shall say no more!” – Per
ASMAU OJUOLAPE AKANBI, J.C.A.

FRIVOLOUS APPEAL – DELAY TACTICS

On the whole, I find no merit
whatsoever in this appeal. It is obviously brought to delay the payment of the
Judgment debt. – Per ASMAU OJUOLAPE AKANBI, J.C.A.

COUNSEL’S PREROGATIVE – MANNER OF PROSECUTING CASE

It is within the prerogative of
counsel to decide the way and manner he intends to prosecute and/or defend the
case of his client. In fact, counsel can compromise the case of his client. As
such, resolve by U. Jay Jones not to file counter-affidavit in opposition to
the application for summary judgment and contemporaneously to leave the fate of
the Appellant in the determination of the application for summary judgment
filed by the Respondent to the discretion of the lower Court is within her
discretion. – Per LATEEF ADEBAYO GANIYU, J.C.A.

WAIVER OF RIGHT TO FAIR HEARING – FAILURE TO EXERCISE RIGHT

Appellant’s contention of denial of
fair hearing is misconceived because he was afforded opportunity to react to
the application for summary judgment but his counsel elected not to avail
himself of the opportunity. The law is settled that whoever is afforded the
opportunity to exercise his fundamental right to fair hearing provided for by
Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria (As
amended) but decides not to exercise same cannot complain that his right to
fair hearing has been denied. – Per LATEEF ADEBAYO GANIYU, J.C.A.