Dr. Sebastine Okechukwu Mezu V. Co-operative & Commerce Bank Nigeria Plc & Anor (2012)

LAWGLOBAL HUB Lead Judgment Report

MARY UKAEGO PETER-ODILI, J.S.C.

The Appellant commenced this action at the Imo State High Court, Owerri Judicial Division seeking the following reliefs:-

(i) 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 is situate at the pieces or parcels of land known as and called “UHU-UMUOYIMA” and which are variously registered as instruments Nos.48/48/806, 6/6/889 in the office at Enugu but now at Owerri.

(ii) A declaration that the Plaintiff mortgaged only the property covered by instrument No. 48/48/806 to the 1st Defendant.

(iii) A declaration that the 1st Defendant has no right 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.

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

(v) An injunction restraining the Defendants from entering into and taking possession of the property of the plaintiff.

FACTS BRIEFLY STATED:

At the trial Court, Appellant filed his statement of claim and thereafter the Defendants filed separate statements of defence (pages 1 – 13 of the main record of appeal). It is noteworthy that the 2nd Defendant’s Statement of defence is a repletion of the 1st Defendant’s Statement of Defence. The case of the Plaintiff/Appellant is that he is the owner of the properties known as and called Nos. 6, 8 and 10 Mezu Lane Owerri; which properties are contiguous. The said piece or parcels of land were formerly known and called “Uhu-Umuoyima” and the plaintiff /appellant purchased these contiguous pieces of land piece meal vide deeds of conveyance registered as 7/7/889, 6/6/889 and 48/48/806 at the Lands Registry Enugu now Owerri. These instruments have survey Plans annexed to them delineating the particular piece or parcel of land covered by each instrument. By a deed of mortgage dated 5/2/76 and registered as 22/22/874 at the lands Registry Enugu now Owerri the appellant mortgaged only the portion of Uhu-Umuoyima covered by deed of conveyance dated 31/12/74 and registered as 48/48/806 of the Lands Registry Enugu now Owerri to the 1st Defendant/Respondent to secure a loan, and not the entire Uhu-Umuoyima land. That the appellant is not indebted to the 1st Defendant rather Mezu International Limited is indebted to the 1st Defendant/Respondent. That though Mezu International Limited is not the owner of the pieces or parcels of land known as and called Uhu-Umuoyima the 1st Defendant purportedly sold the whole pieces or parcels of land called Uhu-Umuoyima to the 2nd Defendant in purported exercise of its power of sale under the aforesaid deed of mortgage between the Plaintiff and the 1st Defendant. It is noteworthy that Mezu International is not a party to the said deed of mortgage and has no proprietary interest in and over the said Uhu-Umuoyima land.

It is also noteworthy that appellant did not mortgage the pieces of land covered by the said instruments registered as 6/6/889 and 7/7/889.

The case of the Defendants is that the Appellant was previously the beneficial owner of the said properties until they were sold to the 2nd Defendant by the 1st Defendant due to the failure of the Appellant to settle his debt despite repeated demands by the 1st Defendant. That until the Appellant commenced this Suit the Appellant had represented that properties Nos. 6, 8 and 10 Mezu Lane Owerri were mortgaged to the 1st Defendant. The Defendants relied on the pleadings and processes in Suit No: HOW/201/93. It is noteworthy that in paragraph 5 of the Statements of Defence the Defendants admitted that the appellant by the said deed of mortgage the appellant mortgaged the land measuring approximately 907.806 square Metres and covered by instrument registered as 48/48/806 of the Lands Registry Enugu.

The Appellant at the trial in the High Court testified as PW1 and gave evidence in line with his pleadings and tendered various documents which were admitted in evidence as exhibits (pages 13-23 of the main record). The documents tendered by PW1 include the following:-

EXHIBIT ‘A’ – Instrument registered as No.6 page 6 Volume 889.

EXHIBIT ‘B’ – Instrument registered as No.7 page 7 Volume 889.