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

LAWGLOBAL HUB Lead Judgment Report

I.C. PATS ACHOLONU, JSC

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 amenable for 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 deter-mined. 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 deter-mine 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 Justice 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 labeled 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 N.W.L.R (Pt 615) 485 at 489 – 490. G-A and Bello V. Anwa (1999) 8 N.W.L.R (Pt 615) 454 at 468. D-F; Ogbonna V. Oti (2000) 8 N.W.L.R. (Pt 670) 582 at 591. G-F. Bello V. Aruwa (1999) 8 N.W.L.R (Pt. 615)454 at 465, Igbinovia V. UBTH & Anor (2000) 8 N.W.L.R. (Pt. 667) 65 – 66.

(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 be related to the decision being appealed against and should constitute a challenge to the ratio of the decision.