Sebastine Okechukwu Mezu V. Co-perative & Commerce Bank Nig. Plc & Anor (2002)

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IGNATIUS CHUKWUDI PATS ACHOLONU, J.C.A.

This case arose from an action by the plaintiff/appellant against the defendants/respondents, particularly, the first respondent to whom the appellant had mortgaged his property by a deed of conveyance sometime in 1976. The case of the appellant against the respondents is that he owned three pieces of property described as No. 6, 8 and 10, which said property were brought at different times by various deeds of conveyances. It is his case that he only mortgaged the property registered as No. 48, volume 86 of the land registry at Owerri. The property known as No 8 and 10 Mezu Lane, Owerri were the ones he asserted were mortgaged to the first respondent. However, the first respondent went and sold the property not mortgaged that is No. 6 Mezu Lane to the second respondent when he the appellant did not owe it. He further stated that in actual fact a Company known as Mezu International was indebted to the first respondent.

The respondents on the other hand, had stated that before the commencement of this suit in the High Court, the plaintiff/appellant had represented to them that the property mortgaged was No 6, 8 and 10 Mezu Lane. In the suit, which followed, the appellant sought the following reliefs from the court: –

(a) A Declaration that the Plaintiff is the owner of the property known as and called Nos. 6, 8 and 10 Mezu Lane, Owerri and which situate at the pieces or parcels of land known as and called UHU-UMUOYIMA and which are variously registered as instrument’s Nos. 48/48/806, 6/6/889 and 7/7/889 in the office at Enugun but now at Owerri.

(b) A Declaration that the Plaintiff mortgaged only the property covered by instrument No: 48/48/886 to the 1st Defendant.

(c) A Declaration that the 1st Defendant has no rights to sell the properties of the Plaintiff to the 2nd Defendant in order to realize the debt owed to the 1st Defendant by the Company – Mezu international Limited. A further Declaration that the any such purported sale is null and void and of no effect.

(d) N5, 000,000.00 (Five Million Naira) being general damages for trespass.

(e) An injunction restraining the Defendants from entering and taken (sic) possession of the property of the Plaintiff.

The 1st respondent, a Bank, had stated in its statement of defence that at a certain stage the accounts of both the plaintiff and Mezu International were later merged into a single account and both parties treated their accounts as a continuing account subject to the mortgaged properties.

The respondent have stated that the plaintiff /appellant at one time became the alter ago; in other words became synonymous with Mezu International limited, a Company of which he owned.

In his judgment, the court below took umbrage and made reference to Ex.G3 which was certified judgment of a suit between Mezu International Limited and Cooperative and Commerce Bank Nigeria PLC – HOW /201/93 – and then said as follows at p.54, 55, 56 and 57 of the records:-

“It is the same Dr. S.O. Mezu the plaintiff in the present case who in paragraph 1 of the affidavit Ex G. deposed as follows: –

“Par. 1. That I am the Managing Director and Chief Executive of Mezu International Ltd who is the Plaintiff Applicant in the above suit”.

i.e. HOW/201/93 and obtained judgment Ex.G3 that now instituted the present action and claimed Declaration that same properties belong to him. The obvious effect is that if he obtains judgment in this case, such judgments will be contrary to and in conflict with the judgment in HOW/201/93, declaring Mezu International Ltd the owner of the properties which judgment is still valid and subsisting. I am of the opinion the courts will not allow this Double standard and a deliberate attempt to hoodwink it. It is my view that the plaintiff Dr. S.O. Mezu is estopped from bringing this present suit.