EMENIKE MBANUGO & CO v. FIRST BANK OF NIGERIA PLC

CORAM

PARTIES

EMENIKE MBANUGO & CO APPELLANTS

FIRST BANK OF NIGERIA PLC RESPONDENTS

AREA(S) OF LAW

SUMMARY OF FACTS

The Claimant/Appellant, Emenike Mbanugo & Co., filed a garnishee proceedings against the Garnishee/Respondent. The trial Court made a garnishee order against the Defendant’s fund in the custody of the Garnishee/Respondent, which order was subsequently made absolute. In reaction to this, the Judgment Debtor filed a motion for stay of execution which was refused by the trial Court. The Garnishee/Respondent then filed a Notice of Preliminary Objection challenging the garnishee proceedings as it was filed by the Claimant/Appellant’s in the partnership name of Emenike Mbanugo & Co. which was not a juristic person. The matter was re-assigned to another judge where proceedings started de novo. By this time, the Claimant/Appellant commenced contempt proceedings against the garnishee/ Respondent’s Managing Director but before the contempt proceedings was heard; the Respondent paid the Claimant/Appellant the garnished sum of N5, 003,771.68 and filed an affidavit of compliance. Being seized of the affidavit of compliance, the trial Court dismissed the Claimant/Appellant’s contempt application. The Claimant/Applicant filed an application praying the trial Court to set aside the order dismissing his garnishee proceeding and to hear the affidavit of compliance filed by the Garnishee/Respondent. The Claimant/Appellant’s application was refused by the trial Court. Aggrieved by the trial Court’s decision, the Claimant/Appellant appealed to the Court of Appeal.

HELD

Appeal Dismissed

ISSUES

None

RATIONES DECIDENDI

ACTION – PROPER WAY IN INSTITUTING AN ACTION

“The Appellant can only bring an action in the name of EMENIKE MBANUGO trading under the name and style of “Emenike Mbanugo & Co, and not as EMENIKE MBANUGO & CO. simpliciter”. PER PEMU, J.C.A

CERTIFICATE OF INCORPORATION – ADMISSIBILITY OF A CERTIFICATE OF INCORPORATION

“Certificate of registration or incorporation issued under the Companies and Allied Matters Act (CAMA) 1990, relevant to the appeal, is a public document and only a certified true copy thereof is admissible in evidence, which was not the case here. PER IKYEGH J.C.A.

ISSUE OF JURISDICTION – WHEN CAN BE RAISED

“The issue of jurisdiction can be raised on appeal and even for the first time at the Supreme Court”. PER PEMU, J.C.A

JURISDICTION – PARTIES AND SUBJECT MATTER IS IMPORTANT IN DETERMINING JURISDICTION

“Parties and subject matter are extremely important in deciding jurisdiction. They are not mutually exclusive. They must both be present. The competence or locus standi of a party is imperative in considering the issue of jurisdiction”. PER PEMU, J.C.A

COMMENCEMENT OF PROCEEDINGS – PROVISIONS OF A STATUTE WITH RESPECT TO THE COMMENCEMENT OF A CAUSE OF ACTION MUST BE COMPLIED WITH

“Therefore where a statute or a given rule of practice prescribes a method for commencing such proceeding in respect of a particular cause of action, it must comply with it, or the action initiated becomes irregular and incompetent”. PER PEMU, J.C.A

COMMENCEMENT OF ACTION – EFFECT OF A SUIT NOT INITIATED BY DUE PROCESS OF LAW

“Where a suit is not initiated by due process of law, the suit is incompetent and where the suit was heard by a Court, the proceedings before the Court are a nullity”. PER PEMU, J.C.A

PRELIMINARY OBJECTION – DUTY OF THE COURT WHEN A PRELIMINARY OBJECTION SUCCEEDS

“It is also settled law that where a court finds that a preliminary objection succeeds, there is no need going into the merit of the appeal. PER OSEJI, J.C.A

CASES CITED

A. G. Federation Vs ANPP & Ors (2003) 12 SCNJ 67Afribank Plc Vs Akwara (2006) 5 NWLR (PT. 974) 619Agbonmagbe Bank Ltd V. General Manger G.B. Ollivant Ltd & Anor (1961) ALL N.L.R. 116.Ataguba & Co V. Guara (NIG) LTD (2005) 6 M.J.S.C. 156;Dernr Ltd V. Trans International Bank Ltd (2008) 18 NWLR Pt. 1119, 388 @ 417.Fawehinmi V. Akhilu (1987) 4 NWLR (PT.67) 797.Ogudu V. State (1994) 9 NWLR (Pt. 586) 1 @ 48Our Line Ltd V. Scc (Nig) Ltd (2008) 17 NWLR (PT. 1170) 382 @ 404.Reptico S. A. Geneva V. Afribank Nigeria Plc (2013) 14 NWLR (pt. 1373) 172Shittu V. Ligali (1941) 16 N.L.R. 21;Shodeinde V. Registered Trustee, Ahmadiya Movement In-Islam (2001) FWLR (PT.58) 1065.Tabik Investment Ltd. V. G. T. B. Plc (2011) 17 NWLR (Pt. 1276) 240,Usman Dan Fodio University V. Kraus Thomson Organisation Ltd. (2001) 15 NWLR (Pt. 736) 305;Uwazurike Vs A. G. Federation (2007) 8 NWLR (PT.1035) 1WAEC V. Akinwunmi (2008) 9 NWLR PT. 1091 @ 151 @ 167 – 169;

STATUTES REFERRED TO

Lagos State High Court (Civil Procedure Rules) 2004

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