The plaintiff/respondent stated in his story in this case that he obtained facilities from the 1st appellant for purpose of assisting him in his fish farming scheme. The security for the mortgage was not properly concluded. However, the fishing business failed due to the activities of Shell Company in that area- a factor which made it difficult to repay the facility at the right time. However, in September, 1988, 2nd appellant a Licensed Auctioneer wrote to the respondent informing him that he had been authorised to advertise and sell by Public Auction his property situate at 9 Moscow Road, Port Harcourt. The respondent as plaintiff promptly filed a suit in the High Court and followed same by a motion for injunction. He stated there had not been any sale of the property to Eze C. C. Nwuche as he and his family were present on the data advertised in National Concord for the sale of the property that as at the data of filing the action he was still the owner of the property. He claimed a declaration that in law the appellants are not entitled to sell his property and perpetual Injunction against the appellants restraining them from the said sale.

The defendants stated that the respondent is a Customer of the 1st appellant who issued dud cheques for the purposes of paying back the facility; that there was a proper mortgage in respect of the property situate at 9 Moscow Road, Port Harcourt. The 1st defendant in evidence stated that the statutory notice to pay was given on 11/5/87 and thereafter sale was concluded whereby the property at 9 Moscow Road, Port Harcourt had been sold to Eze C.C. Nwuche and that there was no court order stopping the sale. It denied any liability. After hearing the evidence and address of counsel on both sides the count below although after holding that there is evidence that the sale of 9 Moscow Road had taken place nonetheless non-suited the plaintiff. The court pointed out so many lapses in the case. I will come to this later.

Aggrieved that the court below did not dismiss the suit instead of non-suiting the plaintiff/respondent thereby providing him with another opportunity to come back, the appellants filed 2 grounds of appeal