- SEBASTINE OKECHUKWU MEZU V. CO-PERATIVE & COMMERCE BANK NIG. PLC & ANOR
In The Court of Appeal of Nigeria
On Thursday, the 11th day of July, 2002
SYLVANUS ADIEWERE NSOFOR Justice of The Court of Appeal of Nigeria
IGNATIUS CHUKWUDI PATS ACHOLONU Justice of The Court of Appeal of Nigeria
MICHEAL EYARUOMA AKPIROROH Justice of The Court of Appeal of Nigeria
- SEBASTINE OKECHUKWU MEZU Appellant(s)
- CO-PERATIVE & COMMERCE BANK NIG. PLC
2. RETMAR INDUSTRIES LIMITED Respondent(s)
IGNATIUS CHUKWUDI PATS ACHOLONU, J.C.A. (Delivering the Leading Judgment): 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.
Section 151 of the Evidence Act provides as follows:
“When one person has by his declaration, act or omission intentionally caused or permitted another person to believe a thing to be true and to act upon such belief neither he nor his representative in interest shall be allowed in any proceedings between himself and such person or such person’s representative in interest to deny the Truth of that thing.”
“The Plaintiff admitted in Evidence in this suit that he is the Chairman and Chief Executive of Mezu International Ltd the Plaintiff, and owners of the property judgment by the in Ex.G. The 1st Defendant in this suit C.C.B jurisdiction of this court”
“Throughout the proceedings Plaintiff never raised the issue that the property No. 6 Mezu Lane was not amongst the mortgaged properties. Plaintiff is hereby estopped and is guilty of acquiescence.
“Again the conduct of the Plaintiff in bringing this suit calls for scrutiny. The plaintiff is the Managing Director and Chief Executive of Mezu International Ltd, the Plaintiff in HOW/201/93 in Owerri High Court. The Company obtained judgment as the owner of the property the subject matter of the present suit. For same person to run round to institute the present suit claiming the same property as his own in my view amounts to an abuse of judicial process.”
The appellant appealed to this court and filed seven (7) grounds. He formulated five issues but at the hearing abandoned issue No. 5 and the argument on it as well:
ISSUES FOR DETERMINATION:
(1) Whether the Appellant established that he mortgaged only his property covered by deed of conveyance registered as No.48 in volume 806 of the Lands Registry, Enugu now Owerri to the 1st Defendant/Respondent.
(2) Whether the trial court had before it evidence on which to grant the declaratory and injunctive reliefs sought by the appellant.
(3) Whether suit No. HOW/201/93 operates as res judicata against the Appellant.
(4)Whether this Suit constitute an abuse of the process of Court.”
The 1st defendant on its formulated three (3) issues for determination:-
ISSUES FOR DETERMINATION:-
“(a) Whether the appellant prove that he is owner of Plots 6, 8 and 10 Mezu Lane, Owerri;
(b) Whether the judgment in suit No. HOW/201/93 operates as res judicata against the appellant and whether the present suit amounts to an abuse of process.
(c) Whether the Learned trial Judge erred in law when he refused the application for the arrest of judgment.”
The 2nd Respondent adopts the 1st respondent’s brief.
I do not think that issue No. (c) of the respondent is necessary anyone, as the appellant had applied to the court to have issue No.5 which is the same as issue No. 3 which is the question of arrest of judgment to be abandoned.
Indeed the two issues that this court is to settle are: (a) is the appellant the owner of plots 6, 8, and 10 Mezu Lane? (b) what pieces of land were mortgaged?
At paragraph 2 of the mortgage agreement it was agreed as follows: –
“In further pursuance of the said agreement and for the consideration aforesaid the Borrower as BENEFICIAL DEMISE UNTO the Bank ALL THAT THE Mortgaged property herein before recited together with the building erected thereon or hereafter to be erected thereon TO HOLD the same UNTO and to the USE of the Bank, subject to the proviso for redemption following, namely, that if the Borrower shall pay to the Bank to the entries on the records of the Bank then and in such a case the Mortgaged property shall at any time thereafter at the request deriving title under him be duly surrendered to him or them.”
‘And the schedule expressly describes the portion mortgaged:
“SHORT DESCRIPTION OF PROPERTY AND REGISTRATION PARTICULARS THEREOF
All that piece or parcel of land together with the buildings erected thereon or hereinafter to be erected thereon situate lying and being “UHU-UMUOYIMA” Owerri measuring approximately 907, 806 Sq. mts and registered as No. 48 at page 48 in Volume 806 of the Lands Registry in the office at Enugu.”
On the face of it, it would seem that only the property described above was mortgaged. I have noted that the learned trial Judge lampooned the appellant for what appeared to him as an inordinate, disquieting, mendacious behavior to approbate and reprobate having regards to a judgment on this same property in which Mezu International took the action against the bank and was successful. In the suit leading to the judgment referred to, that is Mezu International Ltd and Cooperative and Commerce Bank Nigeria PLC, Suit No. HOW/201/93, the plaintiff in paragraph 5 of the statement of claim had stated as follows: –
“The plaintiff is the owner of the property known as “UHU-UMUOYIMA” or otherwise known as and called No.6, 8 and 10 Owerri… within the jurisdiction of this court.
Now paragraph 6 states:-
“By deed of mortgage registered as instrument No. 22 at page 22 in volume 874 of the Land Registry in the office at Enugu but now at Owerri, the plaintiff mortgaged the said properties to the 1st defendants.”
The subject matter in the suit I referred to above and the subject matter in this suit in which appeal lies with us or in which the court is seized of, in the appeal, consists of one of the parcels said to belong to Mezu International. In the former case, Mezu International was the plaintiff and what was the judgment of the court? The judgment of the court runs thus: –
“(a) The purported sale of the Plaintiff’s property known as and called “UHU-UMUOYIMA” at Owerri otherwise known and called Nos. 6, 8 and 10 Mezu Lane, Owerri by the Defendants by a Purported Public Auction on 17th May 1993 is NULL and void and of no effect whatsoever.
(b) the defendants by themselves, their servants, agents or anybody whatsoever acting on the purported Sale are hereby restrained from entering upon the said property or doing anything which is against the proprietary right and interest of the plaintiff over the said property.”
In the suit referred to, Mezu International asserted that it is the owner of the property in question. In the suit that gives rise to this appeal, the plaintiff/appellant who is the Managing Director of Mezu International as per his evidence in examination in Chief is claiming the same property as his.
To whom then does this property belong?
Judgment was given to Mezu International in the earlier suit HOW/201/93 and now suddenly the Managing Director of the Company has instituted an action claiming the property to be his. Nothing could be more suffocating than the appellant in this case attempting to bamboozle the court by this sort of subterfuge. If Mezu International which he owns or which he manages and directs instituted action establishing that it owns this property, such a claim as appeared in the pleadings of HOW/201/93 must necessarily have been at the instance of the Managing Director. Why did he not join in that action in order to show that it is he and not the company that owned the property, he stood by and the court gave the judgment the way it did? The Company, Mezu International obtained judgment as the owner of the property. Dr. Sebastian Okechukwu Mezu cannot be allowed and shall be precluded by law as well as by this court from suddenly metamorphosing by himself alone into a legal entity that is to say; the court shall stop him from suddenly assuming the personality of an incorporated body. It is invidious for him to try and come through the back door to claim the property in which a judgment has been given by a court in an earlier suit and which it relied wholly on in his evidence.
Let me now go into the evidence of the plaintiff/appellant. In his evidence in chief in the court below, he stated that he never assigned any of the properties subject matter of the suit to Mezu International. He agreed that his personal account was merged with the account of Mezu International and that was the only account according to him he had with the bank. Now during the cross examination by Chief Ugolo, when he was referred to paragraph 3 of the affidavit he swore in application for interlocutory injunction in suit No. HOW/201/93, he surprisingly said: –
“l did not swear to the affidavit. I did not give evidence in court to that effect but the signature on page 3 as deponent is mine.”
And he admitted under cross-examination trial the plaintiff/applicant is Mezu International. In paragraph 5 of the statement of claim in suit HOW/201/93, which was tendered and marked Ex. G1 in the court below, that paragraph states as follows:-
“‘The plaintiff (that is Mezu International) is the owner of the properties known as “UHU-UMUOYIMA” or otherwise known as and called, No.6, 8 and 10 Mezu Lane, Owerri, Imo State.”
The plaintiff/appellant admitted that it was so but not under his, instruction. I would hesitate to label the appellant as telling half truth or being economical with words. It would badly stigmatize him but he bailed me with the type of answers he gave. What is deductible from the totality of the case are: (1) the plaintiff made certain statements on oath against his interest such as the affidavit in the earlier suit. (2) The statement of claim in the earlier suit shows that the property belong to Mezu International, and (3) He being almost the sole owner of Mezu International was instrumental to the institution of the action by Mezu International against the bank. He was privy to the case to all intents and purposes- See Coker v. Sanya Olu (1976) 96 S.C page 208.
In this case I am reminded by the observation of Rusell L.J. in Jones v. Lipman 1962 1 (W.L.R.) page 832. In that case, the Lord Justice described the company belonging to the 1st defendant in this language:-
“A devise and a sham, a mask which he holds before his face in an attempt to avoid recognition by the eyes of equity”
The appellant is asking this court to help him effectively rectify his position in spite of various contradictory statements and declarations, prejudicial to his own case, which he had made earlier. Any statement or a stand of a party in a litigation which ex facie can be understood to be against his interest but which later on such party now seeks the court to ignore because of change of circumstances shall be construed against that party to all intents and purposes. To say that the conduct of Mezu is an abuse of the process of the court is an understatement. It is indeed an underhand, unbridled and unspeakable effort to wring from the court a relief or right which by his own conduct he has thrown away and now seeks by twist of argument to pray the court to grant him.
Having held out to the world that the property is that of Mezu International he shall be estopped by the court to turn round to say that he owns the property. In other words he sang his swan song by standing by and encouraging and fully supporting a cause that is manifestly against his interest. I am reminded by the words of Shakespeare in “Macbeth”, wherein he said,
“Such welcome and unwelcome news at once, it is too hard to reconcile.”
This ungainly and unbecoming acquisitive act of the appellant spurred on by intention that the debt to the Bank be indirectly extinguished is condemnable. This mania to reap double ration is to say the least chilling.
This appeal cannot by any stretch of imagination be given any form of credibility or merit as it is premised on ground that is not far away from dubiousness and duplicity. In the circumstances, I dismiss the appeal and affirm the judgment of the court below. The plaintiff shall pay costs to each of the respondents severally assessed at N5, 000.00.
SYLVANUS ADIEWERE NSOFOR, J.C.A.: I have had a preview of the Judgment by my Lord, Pats-Acholonu, J.C.A Just delivered. I agree with the conclusion. I dismiss the appeal and abide by the consequential order for costs.
MICHEAL EYARUOMA AKPIROROH, J.C.A.: I have read in draft the lead Judgment Just delivered by my learned brother Pats Acholonu, J.C.A. just delivered and I agree with his reasoning and conclusion.
The appeal lacks merits and I too dismiss it and affirm the Judgment of the Court below.
I abide by the Order made as to costs.
Ken C.O NjemanzeFor Appellant
Chief Okwuchukwu Ugolo and M.O UzomahFor Respondent