Auto Engineering Sales & Services Limited & Anor V. Mercantile Bank Of Nigeria PLC & Ors (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH OLUBUNMI KAYODE, J.C.A. (Delivering the Leading Judgment)

This is in respect of an appeal against the judgment of the High Court of Cross River State, Calabar Judicial Division delivered on the 5th day of April, 2012 by Akon B. Ikpeme J:

The facts of the case are reasonably straight forward. The appellants were customers of the 1st respondent which subsequently by virtue of liquidation, came under the control of the 5th respondent.

The appellants through the 1st appellant obtained a loan secured by legal mortgage from the 1st respondent. Appellants had difficulties repaying the loan upon which the 1st respondent invoked the powers conferred on it by the legal mortgage and sold the mortgaged property to the 6th respondent. The appellants took out a writ of summons at the High Court of Cross River State in respect of the said sale of the said mortgaged property seeking the following reliefs contained in paragraph 31 of their Further Amended statement of claim dated 16th May, 2003 contained on pages 128-136 of the record of appeal as follows:

(1) A declaration that the plaintiffs are not indebted to the 1st

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defendant in the undisclosed sum of money said to be owed by 1st plaintiff to the 1st defendant and in which the deed of mortgage dated on the 22nd day of October, 1995 is involved.

(2) A declaration that the decision of the 1st defendant to sell plaintiff?s property situate at Plot 7, Block J, Northern Industrial Estate, Calabar and covered by Certificate of Occupancy No CA/1/79 when 1st defendant had consistently refused to send to plaintiffs on request their statement of account No. 159 is done out of bad faith and therefore null and void and of no effect whatsoever.

(3) An order for the 1st and 5th defendants to produce 1st plaintiff?s statement of account in account No. 159 kept with the 1st defendant for purpose of reconciliation of plaintiffs’ account with 1st defendant.

(4) An order setting aside the assignment by 1st defendant to Professor Ukandi Godwin Damachi on 25th May, 1995 of plaintiffs property situate and known as plot 7, Block J, Northern Industrial Estate Calabar and registered as No. 3 at page 3 in volume 31 in the Lands Registry, Calabar when this suit No. C/99/95 commenced on 24th February, 1995 is still pending

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in this honourable Court.

(5) An order directing the 2nd, 3rd and 4th defendants to cancel the assignment of plaintiffs’ property and registered as No. 3 at page 3 in volume 31 of the Lands Registry, Calabar.

(6) N10,000,000.00 damages.