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Mercantile Bank of Nig. Plc v. Nwobodo

MERCANTILE BANK OF NIG. PLC

NIGERIA DEPOSIT INSURANCE CORPORATION

V

LINUS NWOBODO

SUPREME COURT OF NIGERIA

IDRIS LEGBO KUTIGI JSC ( Presided )

SYLVESTER UMARU ONU JSC

UMARU ATU KALGO JSC

DAHIRU MUSDAPHER JSC

IGNATIUS C. PATS-ACHOLONU JSC (Read the Lead Judgment)

SC. 38/2001

FRIDAY, 15TH JULY, 2005 

APPEAL - Constituent of

APPEAL - Ground of appeal - Appellant filing only one ground of appeal - Effect of

APPEAL - Ground of appeal - Bindingness of on parties

APPEAL - Issues for determination - Issues raised in excess of number of ground of appeal - Effect of

APPEAL - Ground of appeal - Need for to arise from the judgment appealed against - Effect of ground not so arising

APPEAL - Reply brief -  Time for filing - Order 6 rule 5 (3), Supreme Court Rules 1999 (as amended) considered

Issue:

Whether there was a competent appeal before the Supreme Court.

[2005] All FWLR                   Mercantile Bank of Nig. Plc v. Nwobodo                1641

Facts:

The respondent as a customer of the 1st appellant, a financial institution lodged with it a reasonably large sum of money. Upon becoming distressed, the 1st appellant was unable to meet its customary obligations in that it could not pay its customers money lodged with it. It was therefore sold over to the Central Bank of Nigeria, which bank handed the 1st appellant over to the 2nd appellant to manage.

Attempts by the respondent to get his money in the bank failed due to the 1st appellant’s impecuniosity and though the appellants were willing to negotiate and explore several opportunities and options in an attempt to pay, the respondent was not amenable to any discussion that was not geared towards full payment of his money in the bank. When the appellants could not meet the demands of the respondent, he (the respondent) instituted an action in court against the appellants.

At the trial court, judgment was entered in favour of the respondent. The argument of the appellants that they were not served with any process filed by the respondent was ignored by the trial Judge. After the judgment was delivered, the respondent applied to the court to garnishee the account of the 1st appellant with the Central Bank. An order nisi was granted. He further made efforts to attach for sale, the goods and chattels of the bank but this yielded no results. He therefore moved to have the bank’s real property situate at No. 17 Harcourt Street, Calabar sold to satisfy the debt.

When their efforts to prevent the sale proved abortive, the appellants filed an application at the High Court to stay the sale. An interim order was granted but the respondent in response filed a motion to set aside the interim order and prayed for the sale of the property. The appellants filed a counteraffidavit arguing that the respondent as a judgment creditor wishing to execute a writ of fieri facias had failed to first attach its movable property in line with the provision of section 44 of the Sheriffs and Civil Process Act and that since the bank had been sealed for the purpose of liquidation, it would be improper to levy execution on its property as it would be against the grain of sections 413 and 414 of the Companies and Allied Matters Act, 1990.

The appellants’ argument was dismissed and the court in granting the prayers of the respondent ordered the bailiff to proceed with the sale of the bank’s property. Aggrieved at this turn of events, the appellants appealed to the Court of Appeal, which court dismissed the appeal. Further aggrieved, the appellants appealed to the Supreme Court.