ENTERPRISE BANK LIMITED v. ROMAC INTERNATIONAL COMPANY LIMITED & ORS (2019)

ENTERPRISE BANK LIMITED v. ROMAC INTERNATIONAL COMPANY LIMITED & ORS

(2019)LCN/13925(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 26th day of June, 2019

CA/K/107/2017

RATIO

APPEAL : WHETHER A PERSON WHO WAS NOT A PARTY TO A SUBSTANTIVE SUIT AT THE TRIAL COURT HAS THE LOCUS TO COMPLAIN AGAINST THE JUDGMENT  OF THE LOWER COURT AT THE APPELLATE COURT

It was held by the Supreme Court, in the case of Assams v Ararume (2016) 1 NWLR Part 1493 Page 368 at 387-388 Para H-A; (2016) All FWLR Part 821 Page 1481 at 1493 Para F-G, per Rhodes-Vivour JSC that, by Section 243(1) (a) of the Constitution (1999) there is a distinction between a party and any person having an interest in the matter. While a party can exercise his right of appeal, any person having an interest can only exercise his right of appeal with the leave of the Federal High Court, State High Court or the Court of Appeal. The Appellant, not being a party to the proceedings in which the offending order was made, cannot, without the leave of the lower Court or this Court, appeal against that order, I hold.
This is trite, I hold, and being jurisdictional, renders it unnecessary, for the 1st Respondents Counsel to have raised this as an issue at the lower Court, before it can be raised in this Court. PER OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.

APPEAL: WHAT HAPPENS IN THE EVENT THAT A PARTY FAILS TO SATISFY THE APPELLATE COURT THAT THE LOWER COURT WAS WRONG IN ITS APPLICATION OF THE FACTS TO THE PRVAILING AND APPLICABLE LAW

As rightly submitted by the Counsel to the 1st Respondent, where the Appellant fails to satisfy the Appellate Court that the lower Court was wrong in its application of the facts to the prevailing and applicable law, the appeal will fail. See Omisore v. Aregbesola (2015) 15 NWLR Part 1482 Page 1 at 274 Para A-B per Nweze JSC; Lafferi (Nig) Ltd v. NAL Merchant Bank Plc (2015) 14 NWLR. PER OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.

 

JUSTICES

OBIETONBARA O. DANIEL-KALIO Justice of The Court of Appeal of Nigeria

SAIDU TANKO HUSSAINI Justice of The Court of Appeal of Nigeria

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE Justice of The Court of Appeal of Nigeria

Between

ENTERPRISE BANK LIMITED Appellant(s)

AND

1. ROMAC INTERNATIONAL CO. LTD
2. HAJAIG CONSTRUCTION CO. LTD
3. NASIRU HAJAIG
4. DEPUTY SHERIFF KANO STATE Respondent(s)

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A. (Delivering the Leading Judgment): The facts leading to the appeal before this Court are that the 1st Respondent, Romac International Ltd, as Plaintiff before the High Court of Kano State, obtained judgment in its favour, per R.D. Muhammad J, against the 2nd and 3rd Respondents, as Defendants before that Court. In its bid to realize the fruit of its judgment, the 1st Respondent applied and was granted leave to attach and sell immovable property of the 2nd and 3rd Respondents/Judgment Debtors. Following attachment of the properties, the Appellant, Enterprises Bank Ltd, filed two interpleader applications, both dated 11/1/2016. The lower Court, in two rulings delivered on the same day, 25/11/2016, refused the applications and directed the 3rd Respondent, the Deputy Sheriff of Kano State, to sell the properties in settlement of the debt. Aggrieved, the Appellant filed an appeal against both rulings on 28/11/16. The Notice of Appeal was subsequently amended; the Amended Notice of Appeal filed on 19/2/18 was deemed properly filed on 2/5/18.

The Appellant?s Counsel, Emeka Ogbonaya Esq of Lumen Chambers, distilled 4 issues for the Court?s determination in the Appellant?s Brief filed on 19/2/18 but deemed as properly filed on 2/5/18, namely:
1. Whether the contents of Exhibits C and D annexed to the motion on notice dated 11th January, 2016 filed by Abbas Haldu, Esq do not constitute sufficient evidence that the Appellant has acquired interest in some of the attached properties.
2. Whether documents made by non-parties to a suit during the pendency of that suit can be said to be of no legal effect if they eventually touch on and affect the interest of parties to such suit.
3. Whether the learned trial judge was right in granting leave at-large to attach and sell the judgment debtor?s properties without specifying any properties to be attached and sold. (Ground 5)
4. Whether given the clear provision of Order VI Rule 14 of the Judgment (Enforcement) Rules the lower Court was right in out-right dismissing the two applications before it.

The 1st Respondent?s Counsel, M.O. Ifem Esq distilled, in the 1st Respondent?s Brief of Arguments filed on 23/5/18, as the issues for determination, the following:
1. Whether the passing remarks or passing comments of the trial judge made during writing ruling/judgment is an obiter dictum and if obiter dictum whether grounds of appeal could be derived therefrom. (Ground 1)
2. Whether the trial judge, after proper evaluation of the Appellant?s affidavit evidence with Exhibits as contained in the two motions dated 11/01/2016, was not right in dismissing the interpleader applications for lacking in merit and substance and if yes whether parties joined issues on security for a debt at the trial Court. (Grounds 2, 3 and 4)
3. Whether the appellant can safely query the grant of leave to attach and sell, the immovable property of the 2nd and 3rd Respondents when the appellant has not linked, herself with the attached property and was not a party when the order to attach and sell was made, by the trial Court (Ground 5)

I shall adopt as the sole issue for determination, the 4th issue distilled by the Appellant, slightly modified, under which all other issues raised by the parties will be accommodated, namely:
Whether the lower Court was right to dismiss the two applications filed by the Appellant.
The applications shall be taken seriatim.
The first application by the Appellant, at Page 123 of the Record, was for the following:
1. AN ORDER of this Honourable Court Declaring the attachment (Purported attachment) and the auction notice placed on these properties to wit: (i) Property situated at 4, Bompai Road, Kano. Subject of interest of the applicant by way of Legal Mortgage, Debenture and Legal Charge as illegal and unlawful.
2. AN ORDER of this Honourable Court setting aside the attachment order (Purported attachment) and the auction notice placed on the said property to wit: 4, Bompai Road, Kano Subject of interest of the applicant by way of Legal Mortgage, Debenture and Legal Charge same being illegal unlawful and wrongly obtained.
3. AN ORDER of this Honourable Court discharging any order or purported order of attachment and auction notice of the said property to wit: Property situated at 4, Bompai Road, Kano subject of interest of the applicant by way of Legal Mortgage, Debenture and Legal Charge as same was granted wrongly and in violation of the applicants constitutional rights.
4. AN ORDER of this Honourable Court directing the 3rd Respondent (Deputy Sheriff) to release forthwith the said property situated at No. 4, Bompai Road, Kano. Subject to interest of the applicant by way of Legal Mortgage, Debenture and Legal Charge as same are subject of interest of the applicant.
5. N1,000,000.00 General Damages against the Respondents Jointly and severally for unlawfully attaching the applicant?s property situated at 4, Bompai Road, Kano subject of interest of the applicant by the way of Legal Mortgage, Debenture and Legal Charge.
6. AND any other Order(s) as this Honourable Court may deem fit to make.
GROUNDS UPON WHICH THE APPLICATION IS MADE
1. That the purported attachment and placing of auction notice on the applicant?s Property situated at No. 4, Bompai Road, Kano, subject of interest of the applicant by way of Legal Mortgage, Debenture and Legal Charge as illegal and unlawful and was done ultra vires.
2. That there has never been any order of this Court or any other Court notifying the applicant of an order attaching and or ordering the sale of the property subject matter of this application.

3. That the provision of the Sheriff and Civil process act was not followed or complied without by the respondents.

In support of the application is an affidavit deposed to by Joy Nwafor, Litigation Secretary in the Chambers of Dapo Ajagbe & Co., Counsel to the Interpleader, Appellant herein, which process was accompanied by a Written Address.

In opposition is a Counter Affidavit Raphael Ewuzie, Litigation Secretary in the firm of M.O. Ifem & Co, Solicitors to the Judgment Creditor, 1st Respondent herein. This was accompanied by a Written Address. In response, the Appellant filed a Further and Better Affidavit deposed to by Felicia Eze, Litigation Secretary in the chambers of the said Counsel to the Interpleader.

Learned Counsel to the Appellant has argued both applications under the various issues distilled by him. I however find it easier to separate both applications and extract from the Appellant?s Brief, the arguments as apply to each motion, for which different rulings were written by the lower Court.
?
Learned Counsel argues, under the 3rd issue for determination distilled by him, that the trial Judge was wrong to grant

6

?leave at large to attach and sell the judgment debtor?s properties without specifying any properties to be attached and sold?. He argues that by Section 44 of the Sheriffs and Civil Process Act, Laws of the Federation 2004, it is stated that ?the judgment creditor may apply to the Court for a writ of execution against the immovable property of the judgment debtor? (emphasis his). By the strict rules of interpretation, this means that such property is known and specified. Citing the case of Mercantile Bank of Nigeria PLC v Linus Nwobodo (2000) 4 NWLR Part 648 Page 297 at 320 Para B-C, it was held, he said, that for this section to apply, the judgment creditor must establish among others that the judgment debtor is owner of the immovable property upon which the execution is sought to be levied.

Also citing Order VI Rule 14 of the Judgments (Enforcement) Rules, Counsel submitted that the lower Court erred in not considering the entitlement of the Appellant, whose interest the section was to protect; the Court merely limited itself to the issue of title to the property, without considering the interpleader?s entitlement under the security for a debt. Having made an order for sale, the lower Court should have made a consequential order as to the application of the proceeds of sale, rather than an outright dismissal of the applications.

The 1st Respondent?s Counsel, in his reaction, contended that the issue of Order VI Rule 14 of the Rules is subsequent and not consequent, as this was not the basis upon which the lower Court considered the interpleader applications before him, which applications were properly refused. It was obiter and did not form part of the ratio decidendi of the judgment.

He further argued that the Appellant was not a party to the suit at the trial Court, merely coming in by way of interpleader and pointed out that the judgment debtors, viz the 2nd and 3rd Respondents did not appeal against the judgment nor question the fact that the properties belong to them. They also did not appeal against the order of the lower Court to attach their properties, the submissions of Appellant?s Counsel should thus be discountenanced, as they have no locus to file this appeal against the judgment/order of the of the trial Court, neither did he seek leave to appeal as an interested party against the said order attaching the 2nd and 3rd Respondent?s properties.

Responding, the Appellant?s Counsel, in his Reply Brief, disagreed that the statement of the trial Judge on Order VI Rule 14 constituted obiter. Replying to the submission that the Appellant, not being a party to the action before the lower Court, could not question the order of the Court, submitted that this issue was not raised before the lower Court and could thus not be raised before this Court. If the Court were to hold otherwise, it was his submission that the Appellant, having an interest, right and entitlement by way of security for a debt under the said Order, has the requisite capacity to query the grant of leave to attach the property.

The Rules by which the application of the Appellant were entertained by the lower Court are Section 34 of the Sheriffs and Civil Process Act and Order VI of the Judgment Enforcement Procedure Rules Cap S6 Laws of the Federation of Nigeria 2004.
These statutes provide as follow:
Section 34 Sheriff and Civil Process Act
1. If a claim is made to or in respect of any property attached in execution under process of a