Asraco Nigeria Limited & Anor V. Trade Bank Plc (2002)

LawGlobal-Hub Lead Judgment Report

OMAGE, J.C.A.

In this appeal, the judgment debtor seeks an order of court to set aside the order of attachment and sale of the immovable property of the judgment debtor. The order of attachment and sale was made by the Kano State High Court on 7th August, 2000. The judgment debtor was dissatisfied with the order of court and filed an appeal thereof on three grounds. Only one issue is formulated from the three grounds which reads;

“whether the respondent as applicant in the court below satisfied the provisions of the law as laid down by section 44 of the Sheriffs and Civil Process Act, Cap. 407, Law of the Federation. Order 4, rule 16 of the

judgment enforcement rules and section 43 of the sheriff and civil laws of Kano State before the learned trial Judge granted its application for leave to attach and sell the 2nd appellants immovable property.”

The appellant’s brief was field on 31/11/2000. The appellant file also a reply brief on 31/11/00 both of which he adopted on 21/1/02. The respondent file his brief after the prayer for extension of time on 12/4/01. In his brief, the respondent submitted that the appellants sole issue does not properly represent the issue to be determined in the appeal. In the respondents brief, he formulated what he considered the proper issue, when he submitted thus;

“Having regard to the entire contents of the affidavit evidence in this case, and counsels submission in support of respondent’s motion on notice dated 23rd June, 2000 thereof was the court below right in granting the respondents leave to attach and sell the immovable property of the 2nd appellant and if not, has the appellants suffered any miscarriage of justice thereby.”

The respondents averred that the issue above is formulated from grounds 1, 2 & 3 in the notice of appeal. In my view the sole issue formulated by the appellant is only on ground 2 of the ground of appeal contained on page 54 of the records; at page 52. There is nothing contained in the appellants sole issue, about miscarriage of justice although ground thereof spoke of miscarriage of justice it is not in the issue formulated. It is evident from the appellants sole issue that his complaint is against the order of the court below for its failure to observe in toto the provisions of section 44 of the Sheriffs and Civil Process Act, Cap. 407. The contents of which are in pari materia with section 43 of the Sheriffs and Civil Process Law, Cap. 135, and with Order 4 rule 16, of the judgment enforcement rule Kano State. This deals with the condition for sale of immovable property. Since therefore the appellants sole issue does not relate to any other two grounds of appeal filed, the appellant will be deemed to have abandoned the two grounds of appeal which his issue does not reflect these are issues 1 & 3. The only issues formulated by the respondent encompassed the three grounds of appeal filed by the appellant. The respondents only issue therefore exceeds the issue formulated by the appellant. Not only that, while in the appellant’s 3rd grounds of appeal, the appellant did not advert to the alleged error of court below in misdirecting himself on the counsels submission the respondent took and formulated in his issue in alleged positive failure of the said courts ruling thereon and said it was right.

The issue was not contested at all in the appellants brief; as the appellant brief was not on that. For the above reason, it can be held that not having filed any grounds of appeal, the respondent issue included in his point of contest on argument issue in the appeal and to that extent the issue of the respondent is only relevant in only some material respect. It is the rule that the issue formulated must derive from the ground of appeal filed. When therefore the appellants issue is limited to only one ground of appeal, the other grounds are deemed to be abandoned. See Philip Obiora v. Paul Osele (1989) 1 NWLR (Pt. 97) 279, respondent issue should be so limited. See Emeghara v. Health Management Board of Imo State & 2 Ors. (1987) 2 NWLR (Pt. 56) 330.

The facts of the case is as follows. The record of proceedings filed by the appellant does not show this, but the respondents brief shows that the respondent commenced proceedings in the Kano State High Court against the appellant for recovery of the sum of N86,257,726.68. The said sum of over eighty six million, is stated to be for the recovery of the outstanding debt balance in the account, of over draft facilities granted to the appellant, of N40 million Naira, and of an additional sum of N46,726, 000.00 contrived to take from the respondents account by the appellant. Because of the failure of the appellant to pay the said amount, the respondents commenced the action in the Kano State High Court and claimed in addition interest at the agreed rate of N30. The action was commenced by the undefended list procedure the defendant, now appellant filed a notice of intention to defend. At the preliminary hearing under the undefended list, the court below, before transferring the other part of the claim for hearing on the general cause list, made a finding on which he ordered judgment of N50 million against the appellant in favour of the respondent subsequently the respondent on obtaining the judgment of N50 million filed an application to attach and sell the immovable property of the appellant. The court below made the order as prayed.

The printed record shows that the order of court to attach and sell the immovable property of the appellant was made on 7/8/2000.

It is against this order of court of 7/8/2000, that the appellant has appealed, after obtaining the leave of the court below. As recorded above, the appellant formulated one issue for determination and it is my understanding that the sole issue is based on ground 2 of the ground of appeal. Nothing in the issue reflects grounds 1 and 3. In his brief, the appellant submitted that the prayer of the respondent which read as is stated below does not comply with the provisions of Order 4 rule 16 of the judgment enforcement rules of Kano State, which provisions are contained in the Sheriffs and Civil Process Law Cap. of Kano State, both laws are the same as in section 44, Sheriffs and Civil Process Act, Laws of the Federation of Nigeria.

The application of the respondent in the court below reads:

“An order granting leave to the applicant to attach and sell the immovable property of the judgment debtor.

Covered by the Kano State Certificate of Occupancy No RES/RC/88/37 on which the applicant has an equitable mortgage and any other property(ies) of the respondent to satisfy the judgment debt.” etc.