Mercantile Bank Of Nig. Plc. & Anor. V. Linus Nwobodo (2005)

LAWGLOBAL HUB Lead Judgment Report

PATS-ACHOLONU, J.S.C.

The 1st appellant a Financial Institution had in the course of its operation, the respondent as a customer who lodged a reasonably large sum of money in the Bank. It became distressed and was unable to meet its customary obligations in that it could not pay its customers money lodged therein. It was eventually sold over to the Central Bank for N1.00. The Central Bank handed it over to Nigeria Deposit Insurance Corporation to manage.

The respondent being one of its customers made efforts to get his deposits in the bank back but all to no avail due to the 1st appellant’s impecuniosity. The appellants stated that on their part they tried to negotiate, and verily explored several opportunities and options to attempt to pay but the respondent wanted all his money or nothing and was not amiable to any discussion that was not geared towards full payment of his money in the bank. In consequence of failure to meet the demands of the respondent, the respondent went to Court. At the Court of first instance, judgment was given to the respondent, but the appellants argued that they were not served with any process filed by the respondent until judgment was given in the case. The appellant stated that on the date the judgment was slated to be delivered, a staff of the 1st appellant was in court and raised objection to the non service of the processes. This was ignored by the presiding judge Binang J. who of course entered judgment for the respondent. After the judgment had been given, the respondent applied to the court, and had striven to garnish the account of the 1st appellant in the Central Bank. Although an order Nisi was granted, it was not made absolute. The respondent thereafter made effort to attach for sale the goods and chattels of the bank but for some unaccountable reasons none was attached. Instead, the respondent moved to have the bank’s real property situate at No. 17 Harcourt Street by Bassey Duke Street, Calabar sold to satisfy the debt.

When all efforts to prevent the sale proved fruitless the appellants filed an application at the High Court to stay the sale. An interim order was made but subsequently the respondent filed a motion to set aside the interim order and prayed for the sale of the immovable property hither mentioned. The appellants filed a counter affidavit. The mainstay of the 1st appellant’s stand is that pursuant to section 44 of Sheriff and Civil Process Act, Laws of the Federation of Nigeria 1990, a judgment creditor who wishes to execute a writ of fieri facias must first attach movable property arguing that this was not done in this case by the respondent. It further argued that since the bank had been sealed for the purpose of liquidation it would be improper to levy execution on its property which in its belief would go against the grain of sections 413 and 414 of the Company and Allied Matters Act 1990. The trial court (incidentally another Court) dismissed the appellants’ argument and granted all the prayers of the respondent and ordered the bailiffs to proceed with the sale of the bank’s immovable property. Incensed by the realities of the situation that its cherished property might indeed be sold, the two appellants appealed against the ruling of the High Court. It was unanimously dismissed. Not satisfied with the judgment of the Court below, they appealed to this Court.

From the record before this Court, there was one ground of appeal filed. To file only one ground, of appeal, the necessary inference is that there is only one issue which stands as a source of contention or dispute. It means or portends in effect that there are indeed no more than one question to be determined. In other words, the appellant would inevitably frame or formulate only a sole issue. Surprisingly the appellant strove ungainly, inelegantly and shockingly to formulate 4 issues. The attempt to foist on the court to determine 4 issues arising out of one ground of appeal, ex facie, bespeaks of ignorance of the methodology of approach in framing issues. Where the number of issues distilled are far in excess of the number of grounds of appeal, then the implication is that there has been a parade or display of palpable ignorance, nay, culpable lack of the knowledge of the law. It means that the appellant does not even know or is not sure what he is appealing against.

Let me set down the appellants’ sole ground of appeal as contained in the record,

“1. The learned Justices of the Court of Appeal erred in Law when they held that failure to comply with the provisions of section 44 of the Sheriff and Civil Process Act Laws of the Federation 1990 did not amount to a miscarriage of justice”.

Then they set out in no less than eight (8) paragraphs what they euphemistically described or labelled as particulars of error. The whole matter I must confess, is mind boggling to say the least.

The respondent filed a notice of preliminary objection based on:

(a) That the sole ground does not arise from the judgment of the Court of Appeal. He cited several cases notably; Oba v. Egberongbe (1999) 8 NWLR (Pt. 615) 485 at 489-490. G.A and Ogbanu v. Oti (2000) 8 NWLR (Pt.670) 582 at 591. G-F; Bello v. Aruwa (1999) 8 NWLR (Pt.615) 454 at 465; Igbinovia v. UBTH & anor (2000) 8 NWLR (Pt. 667) 53.

(b) That the issues formulated from the incompetent ground are and should be incompetent.

It is always an elementary law that grounds of appeal must of necessity arise from the judgment, ruling or decision or any pronouncement of the Court below. When a ground has not the remotest connection with what the Court below decided and which agitated the mind of the appellant to seek for a review and overturn the decision, but he misconceived what he ought to complain against and confused himself by setting up a case not in existence, the Appellate Court would naturally throw away the incompetent appeal. In the event that there is only one such ground, then of course, there would simply be no appeal as what is set down as a ground of appeal is non existent being no more than a figment of imagination of the appellant. I shall in this connection refer to two judgments. In Bello v.Aruwa (Supra) the Court of Appeal held thus;

“it is well settled proposition of the law in respect of which there can hardly be a departure, that grounds of appeal against a decision must relate to the decision being appealed against and should constitute a challenge to the ratio of the decision. See Egbe v. Alhaji (1990) NWLR (Pt. 128) 546 at 590. Grounds of appeal are not formulated in abstract. They must arise from the judgment in the same way as the issues arising from the grounds of appeal. However meritorious a ground of appeal may be, it must be connected with the controversy between the parties, so also is the issue arising from the ground. This is indeed a pre-condition if for the vesting of judicial powers under the Constitution in the Courts. See Adesanya v. President of Nigeria (1981) 2 NCLR 358. In other words, like pleadings, parties are bound by their grounds of appeal and are not at liberty to argue grounds or raise issues not related to the judgment appealed against. See Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 156 at 184. See also Bakule v. Tenerewa (Nig.) Ltd (1995) 2 NWLR (Pt. 308) 724 at 739-740.

Equally too in Iloabachie v. Iloabachie (2000) 5 NWLR (Pt.656) 194, the Court of Appeal held thus;

“A ground of appeal which purports to raise and attack an issue not decided by the judgment is incompetent. Thus, where the factual basis for attacking a judgment is false or non-existent, the ground of appeal based on the fictitious or misleading premise is incompetent. It constitutes a clear misrepresentation of the decision of the trial Court which vitiates the basis of the complaint on appeal. In the instant case, the ground of appeal which dealt with the issue of the trial Court deciding the question of title to land in dispute did not arise from a determination of the trial court and is therefore incompetent. Issue 7 formulated therefrom is also incompetent.

What are the appellants’ answer They filed an appellants reply brief on 4/10/2001 nearly 5 months after the respondent’s brief. There is nothing in the record to show that the appellants obtained the leave of the Court to file the reply brief out of time. Order 6 rule 4(3) of the Supreme Court Rules states as follows:

“The appellant may also file in the Court and serve on the respondent a reply brief within four (4) weeks after service of the brief of the respondent on him but, except for good and sufficient cause shown, a reply brief shall be filed and served at least (3) three days before the date set down for the hearing of the appeal”

There is nothing on the record to show that the reply brief filed nearly 5 months after the filing of the respondent’s brief received the endorsement of the Court by way of prayer for leave to file out of time. Assuming for the sake of argument, that the appellant might have for some unaccountable reason filed the reply brief within 4 weeks after service of the respondent’s brief, let me examine the worthwhileness and substantiality of the reply brief.

In the main, the so called and described reply brief is a feeble attempt by the appellants to state that in point of fact they filed 5 grounds of appeal. It is interesting that they now in their reply brief attempted to improvise and convert the sole ground with no less than 8 particulars into 5 grounds of appeal. It should be observed that if the appellant had made a mistake in their notice of appeal, they could have striven to move the court for leave to amend the notice of appeal. Like elfins, they wanted to have the sole ground to metamorphose into 5 grounds of appeal by a magic wand on the puerile premise that they made a mistake in their numbering. How shall I liken this unheard of method of appeal by the appellant. I remember what was said of the mythical Humpty Dumpty who said that whatever he wants something to be is what it is going to be. It is equivalent of saying that one can make a square – circle which is impossibility. The attempt is like what Shakespeare describes in Macbeth in these words. “It is like a tale told by an idiot full of sound and fury signifying nothing.”

Now let me address on the issue of the sole ground. I have carefully read the leading judgment and the concurring judgments of the Court of Appeal and there was no single place where the court (of Appeal) expressed a view or decision to the effect that failure to comply with the provisions of section 44 of the Sheriffs and Civil Process Act, Laws of the Federation 1990 did not amount to a miscarriage of justice. Indeed in respect of the import of section 44 of the Sheriffs and Civil Process Act, what was said in the leading judgment by Ekpe JCA, runs thus;

“From the foregoing paragraphs of the respondents affidavit, I hold that the respondent complied with section 44 of the Sheriffs and Civil Process Act, 1990 by satisfying the conditions set out therein which enable him to be granted leave by the lower court to levy execution, on the said immovable property of the 1st appellant.

We should ignore the strange and unknown method of procedure of trying to embellish the sole ground and make multiple grounds from it. Since what was not said by the lower court formed the fulcrum of the appellants’ case, the inevitable conclusion is that there is no appeal or better still, the appellants have not the foggiest idea what to appeal against. In other words, there is simply no appeal in a strict sense before this court. No useful purpose will be served in considering issues that emanate from incompetent appeal.

In the circumstance there is nothing worth considering in the appeal. It lacks everything that any court should look for in an attempt to determine the credit of an appeal from forensic point of view. I hereby strike out the appeal for its incompetence with cost to the respondent assessed at N10,000.00 only.

SC.38/2001