OBUMSELI & ANOR v. UWAKWE

CITATION: (2019) LPELR-46937(SC)

In the Supreme Court of Nigeria

ON FRIDAY, 8TH MARCH, 2019Suit No: SC.65/2009

Before Their Lordships:

OLABODE RHODES-VIVOUR Justice of the Supreme CourtOLUKAYODE ARIWOOLA Justice of the Supreme CourtJOHN INYANG OKORO Justice of the Supreme CourtCHIMA CENTUS NWEZE Justice of the Supreme CourtAMINA ADAMU AUGIE Justice of the Supreme Court

Between1. CHIEF V. C. OBUMSELI2. VINCO ENGINEERING SERVICES (NIGERIA) LIMITED - Appellant(s)

AndCHINYELUGO P. UWAKWE(Substituted for Madam T. Uwakwe by Order ofCourt of Appeal of 19/04/07)

- Respondent(s)

RATIO DECIDENDI1. EVIDENCE - BURDEN OF PROOF/ONUS OF PROOF: Burden of proof in inter-pleader summons proceedings

"as a general rule, in Interpleader Summons Procedure, the Claimant is deemed to be the plaintiff and thejudgement creditor, the defendant. As such, the onus is always on the claimant, as the plaintiff, to establish title tothe property he claims, Kala v. Potiskum [1998] 3 NWLR (pt. 540) 1; Jinadu v. Babaoye (1966) 2 All NLR 241; Maigorov. Bashir [2000] FWLR (pt. 19) 553; [2000] 11 NWLR (pt. 679) 453; Olatunde v OAU and Anor [1998] 5 NWLR (pt 549)178; (1998) LPELR - 1648 (SC)."Per NWEZE, J.S.C. (P. 16, Paras. C-E) - read in context

2. EVIDENCE - AFFIDAVIT EVIDENCE: Effect of uncontroverted facts in an affidavit"it is trite law that depositions in an Affidavit, which are not challenged, are deemed admitted - Magnusson V. Koiki(supra). The Appellants only have themselves to blame, faced with an Affidavit, they failed to file a Counter-Affidavitto controvert the facts therein, therefore, the Court of Appeal was right to hold as it did against them."Per AUGIE,J.S.C. (Pp. 19-20, Paras. E-A) - read in context

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3. PRACTICE AND PROCEDURE - INTERPLEADER PROCEEDINGS: Nature of Interpleader proceedings and whetherhearing of the proceeding must be by oral or affidavit evidence"Interpleader summons procedure is applicable where the goods and/or chattels of a person not named in the writ offifa is attached and the person comes forward to claim his property. In such a proceeding, as a general rule, theclaimant is deemed to be the plaintiff and the judgment creditor, the defendant. Accordingly, the onus is generallyon the claimant, as the plaintiff in the proceedings, to establish title to the property he claims. See Olatunde vObafemi Awolowo University & Anor (1998) 5 NWLR (pt 549) 178, (1998) LPELR - 2575 (SC), Kala v Potiskum & Anor(1998) 3 NWLR (pt 540) 1, (1998) LPELR - 1648 (SC).Interpleader proceedings are provided for in Section 34 of the Sheriffs and Civil Process Act which states:"34(1) If a claim is made to or in respect of any property attached under process of Court, or in respect of theproceeds or value thereof the registrar may, upon the application of the sheriff, as well before as after any actionbrought against him, issue a summons calling before the Court the party at whose instance the process issued andthe party making the claim.(2) Upon the issue of the summons, any action brought in any Court in respect of the claim or of any damage arisingout of the execution of the writ shall be stayed.(3) On the hearing of the summons, the Court shall adjudicate upon the claim, and shall also adjudicate between theparties or either of them and the sheriff upon any claim to damages arising or capable of arising out of the executionof the writ by the sheriff, and shall make such order in respect of any such claim and the costs of the proceedings asit thinks fit."Also, Order VI of the Judgment Enforcement Rules made pursuant to the Sheriffs and Civil Process Act would be veryilluminating having regard to the procedure in hearing Interpleader actions. It states:-Order VIRule 1: Any claim in respect of attached property shall be made to the Bailiff holding the writ or to the Sheriff.Rule 2(1): The Sheriff shall give information of the claim to the Registrar of the Court for the division or district inwhich the property is situate.Rule 2 (2): On the receipt of the information, the registrar shall send notice of the claim to the judgment creditor orplaintiff in form 42 and a notice to the claimant in form 43.Rule 4(1): If the judgment creditor or plaintiff does not admit the claim, the sheriff shall, unless the claimant haswithdrawn his claim, apply for the issue of summons in accordance with the provisions of Section 34 of the Act.Rule 4(2): Upon such application, the registrar shall enter interpleader proceedings in the books of the Court and fixa day for hearing and prepare and issue Interpleader Summons to the Judgment Creditor or plaintiff and the claimantin such forms in the first schedule to the Act as are applicable to the case and make all necessary copies therefore.Rule 6 (1): The claimant shall within such reasonable time before the return day as the time of service permits, file inthe Court registry three copies of the particulars of the property he claims and the grounds of his claim, or in thecase of a claim for rent, particulars stating the amount thereof, and the period and the premises in respect of whichthe rent is claimed to be done.Rule 6 (2): The claimant shall include in his particulars a statement of his full name, address and occupation.Rule 6 (3): The registrar shall send copies of the particulars to the sheriff and the judgment creditor provided thatthe Court may, if it thinks fit, hear the proceedings although the particulars have not been filed.I have carefully perused both Section 34 of the Sheriffs and Civil Process Act and Order VI of the JudgmentEnforcement Rules set out above and I am unable to see any special procedure provided for the hearing ofInterpleader proceedings. There is nowhere stated that the trial Judge must hear oral evidence from the parties.There is nowhere stated also that the hearing must be by affidavit evidence alone. The appellants relied on the caseof Kala v Potiskum (supra) to anchor the submission that the hearing ought to have been by viva voce evidencealone. With due respect to the learned counsel for the appellants, the issue of whether interpleader action should beconducted by calling oral evidence alone was not one of the issues decided by this Court in Kala v Potiskum (supra).Thus, this authority does not advance the case of the appellant at all.In his book "Practice and Procedure of the Supreme Court, Court of Appeal and the High Courts of Nigeria" publishedin 1980 by Hon. Justice Akinola Aguda (of blessed memory), the learned Jurist states clearly that affidavit can beused to show the claimant's interest in the attached property. See paragraphs 30.6 at page 382, 30.7 at page 382,30.20 at page 385. In the instant case, the claimant filed an affidavit stating that she is in fact the owner of the OPELOMEGA 2.0 car with registration No. BE 318 ENU and attached the vehicle particulars to buttress her claim. Thematter was decided based on the affidavit evidence and the exhibits annexed. I do not see anything wrong with thatprocedure. It is clear that where the claimant has filed an affidavit deposing to facts in support of his claim withexhibits if any, and the judgment creditor does not oppose the application, the trial Court can summarily deal withthe matter and release the attached chattel or property to the owner (claimant) if satisfied with the evidence beforeit. In this type of situation, even if the wrong procedure was followed, it cannot be a ground for dismissing theapplication if it is meritorious. The days of technicalities are over. See Holman Bros v The Compass Trading Co. Ltd(1992) 1 NWLR (pt 217) 368 at 378, Ijewere v Eribo (2014) LPELR - 23263 (CA).As I said earlier, the appellant failed to show that proof by viva voce evidence is specifically prescribed for thehearing of Interpleader Summons. Thus the case of Raymond Dongtoe v Civil Service of Plateau State (supra) citedby the learned counsel for the appellants does not apply. I agree entirely with the Court below that the learned trialJudge was right to determine this matter by affidavit evidence placed before him. This procedure does not rule outoral evidence where affidavit evidence will not be enough to resolve conflicts in the matter."Per OKORO, J.S.C. (Pp.8-14, Paras. C-A) - read in context

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4. PRACTICE AND PROCEDURE - INTERPLEADER PROCEEDINGS: Nature of Interpleader proceedings and whetherhearing of the proceeding must be by oral or affidavit evidence"Interpleader is a proceeding by which a person, who does not himself claim the property, can protect himself fromlegal proceedings by calling upon the Claimants to interplead, that is, claim against each other so that the title to theproperty, debt, etc., may be determined. Where a Sheriff seizes or intends to seize goods by way of execution, and aperson, other than a Judgment debtor, claims them, the Sheriff institutes the proceedings to determine whether theproperty belongs to the Judgment debtor (therefore, can be seized), or to the Claimant.?In this case, the Claimant, the mother of the Judgment Debtor, who is deceased, and was substituted by theRespondent herein, filed an Affidavit at the trial Court stating that she is the owner of the said vehicle and sheattached the vehicle particulars to buttress her claim. So, the matter was determined on the Affidavit evidence andExhibits. The Appellants contend inter alia that the Court of Appeal erred when it held as follows on the procedureadopted by the trial Court -The proof of ownership by the Claimant may be by way of affidavit evidence to be complemented, if necessary, byviva voce evidence. Consequently, the counsel to the Creditor was in error when he failed to file his Counter-Affidavitat the proceedings - - The proceedings of the Interpleader proceedings by Affidavit in the matter before the Courtbelow was valid. Evidence existed by Affidavits on which the learned trial Judge could rule as he did and it wascorrectly so done.It is well-settled that averments in supporting Affidavits are evidence upon which the Court may, in appropriatecases, act- see Magnusson V. Koiki (1993) 9 NWLR (Pt. 317) 287 SC, wherein this Court observed:Affidavit evidence upon which applications or Motions are largely decided are not the same thing as pleadings in acivil suit, which are written statements (and not evidence generally) of facts relied upon by a party to establish hiscase or answer to his opponent's case. It is in exceptional cases, for example, where there are irreconcilableaffidavits from both sides, that oral evidence will be allowed to be led in support of interlocutory application - - -unlike pleadings which will have to be supported by evidence at the trial.As my learned brother, Okoro, JSC, pointed out in the lead Judgment, there is nowhere in Section 34 of the Sheriffsand Civil Process Act, or Order VI of the Judgment Enforcement Rules, made pursuant thereto, where it is stated thatthe Court must hear oral evidence from Parties, or that hearing in the proceedings must be by affidavit evidencealone.In this case, the Claimant filed an Affidavit wherein she deposed to facts in support of her claim of ownership of thevehicle in question, but Appellants failed, refused or neglected to file a Counter-Affidavit. Thus, there was nothinglike "irreconcilable affidavits from both sides", to warrant oral hearing or the taking of oral evidence from theParties."Per AUGIE, J.S.C. (Pp. 17-19, Paras. B-E) - read in context

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JOHN INYANG OKORO, J.S.C. (Delivering the Leading

Judgment): This is an appeal against the judgment of the

Court of Appeal, Enugu Division delivered on the 16th day

of October, 2008 wherein the Court below upheld the

decision of the learned trial Judge of the High Court of the

former Bendel State (now Delta State) which had decided

in favour of the claimant in the inter pleader action therein.

A synopsis of the facts will illuminate the judgment.

By a default judgment obtained from the High Court of the

former Bendel State, now Delta State and registered in the

High Court of Anambra State, the Judgment Creditor

sought to levy execution on the movable property of the

Judgment Debtor. In the process, execution was levied on

the property of a third party and the sheriff of the Onitsha

High Court instituted an inter pleader summons, the

subject matter of this appeal.

At the end of the hearing of the matter at the trial Court,

that Court found as a matter of fact and law that the

subject matter of the execution - an OPEL OMEGA 2.0 car

with Registration No. BE 318 ENU, Chasis No. WOL

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000017J1004936 and Engine No. C21E25C93432 belonged

to the claimant and ordered that the said vehicle be

released to the claimant who is the mother (now deceased)

of the judgment debtor.

Dissatisfied with the judgment of the learned Trial Judge,

the appellant herein as the judgment creditor, appealed to

the Court below, which after a careful consideration of the

issues submitted for determination, dismissed the appeal.

Further dissatisfied, the appellant has appealed to this

Court vide Notice of appeal filed on 11th November 2008

which contains four grounds of appeal. Learned counsel for

the appellant, Austin Ononye, Esq who settled the

appellant's brief distilled four issues for the determination

of the appeal. The four issues are as follows:-

1. Whether the lower Court did not misdirect itself in

holding that the trial of the Interpleader proceedings

by affidavit as did the learned trial Judge was valid

after having held that "since the claimant is defined

as a plaintiff and judgment creditor a defendant, and

the claimant is required to prove his claim, it would

appear that the submission of a viva voce evidence is

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not out of place. Indeed it appears desirable in order

to enable examination and cross examination of the

claimant to take place."

2. Was it not a non-direction in law which resulted in

a wrong decision for the learned Justices of the lower

Court to have failed to advert to and apply the time-

long decision of the Supreme Court in Raymond

Dongtoe v Civil Service Commission of Plateau State

(2001) NWLR (pt 717) 132 at 153: or (2002) 2 CHR 95

at 116, to the effect that "it is well settled principle

that where special procedure is prescribed for the

enforcement of a particular right or remedy non-

compliance with or departure from such a procedure

is fatal to the enforcement of the remedy see

Baroclough v Brown (1987) AC 615.

The remedy provided by the statute must be

followed."

3. Did the learned Justices of the lower court not

misunderstand and misconstrue Justice T. Akinlola

Aguda's statement in his Practice and Procedure of

the Supreme Court, Court of Appeal and the High

Courts of Nigeria that "the summons issue must be

supported by an affidavit."

4. Were the learned Justices of the lower Court not

wrong in the conclusion they reached that the

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Appellants were afforded the facility of fair-hearing

and they failed to utilize it and that therefore no

evidence of a denial of fair-hearing existed.

The learned counsel for the Respondent who settled the

brief of argument for the Respondent distilled two issues

for the determination of this appeal. The said brief was

deemed filed on 11th December, 2018. The two issues are:-

1. Whether the Court below was right in affirming the

procedure adopted by the trial Court in determining

the interpleader, the subject matter of this appeal.

2. Whether or not the Appellants were denied fair

hearing.

From the facts of this case vis-a-vis the decision of the

Court below and having regard to the grounds of appeal, it

is my view that the two issues nominated by the learned

counsel for the Respondent is more apt and germane to the

determination of this appeal. I shall therefore adopt the two

issues in determining this appeal.

ISSUE ONE:-

In his argument in this issue, the learned counsel for the

Appellants submitted that the trial of a claim brought by

way of Interpleader summons under Section 34 of the

Sheriffs and Civil Process Act is by oral hearing or taking of

oral

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evidence from the claimant as plaintiff and his witnesses on

the one hand and the respondent/judgment creditor as

defendant and his witnesses on the other hand, citing the

case of Kala v Potiskum (1998) 1 SCN J 143 at 146.

That as against the simple process of filing a motion on

notice supported by affidavits and counter affidavits, the

Act makes provisions in Order VI of its rules for a step by

step process in an Interpleader summons proceedings.

Learned counsel contended that Order VI has not provided

for the filing of affidavit or counter affidavit but the filing of

particulars with stipulated contents by the claimant and the

judgment creditor does not have to file any document in

reply to the claimant's particulars unless he is claiming

damages against the Sheriff, relying on "Civil Procedure in

Nigeria" by Fidelis Nwadialo at page 802, Essays on Civil

Proceeding Vol. 1, paragraph 149 at page 90 by Obi Okoye.

Learned counsel further submitted that where a special

procedure is prescribed for the enforcement of a particular

right or remedy, non-compliance with or departure from

such a procedure is fatal to the enforcement of the remedy,

relying

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on Baroclough v Brown (1987) AC 615, Raymond

Dongtoe v Civil Service Commission of Plateau State

(2001) NWLR (pt 717) 132 at 153. He stressed that

Rules of Court must be obeyed, citing FBN v Abraham

(2009) All FWLR (pt 461) 863 at 876 paragraph G. He

urged the Court to resolve this issue in favour of the

Appellants.

In response, the learned counsel for the respondent

submitted that the Court below was right in affirming the

procedure adopted by the trial Court in the Interpleader

Summons Proceedings. Learned counsel contended that a

look at the law and the Rules of Court relating to

Interpleader Summons will show that the lower Court was

right in its conclusion. Referring to Section 34 of the

Sheriffs and Civil Process Act and Order VI of the Judgment

Enforcement Rules made pursuant to the Sheriffs and Civil

Process Act, 1990, learned counsel submitted that nowhere

in any of the enactment is there recorded that parties must

give oral evidence or that affidavit evidence is prohibited.

He urged that the case of Kala v Potiskum (supra) relied

upon by the appellants is inapplicable.

Referring to certain paragraphs of the book Essays on Civil

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Procedure by Obi Okoye and Practice and Procedure of the

Supreme Court, Court of Appeal and the High Courts of

Nigeria by Akinola Aguda, learned counsel submitted that

Interpleader proceedings can indeed be conducted with

affidavit evidence.

On the specific procedure for Interpleader proceedings,

learned counsel submitted that the appellants failed

woefully to show that proof by viva voce evidence is

specially prescribed for the hearing of an Interpleader

Summons. That the case of Raymond Dongtoe v Civil

Service Commission of Plateau State & Ors (supra)

cited by the appellants is totally irrelevant to the facts of

this case and does not advance the case of the appellants.

He urged the Court to disregard all technicalities the

appellants seek to rely on and do substantial justice. He

further urged the Court to resolve issue one against the

appellants.

Part of the judgment of the lower Court which grounds 1, 2

and 3 in the notice of appeal attacks, which produced issue

one, is contained on page 78 of the record of appeal which

states thus:

"In the light of the above, I rule that the proof of

ownership by the claimant may be by way of affidavit

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evidence to be complemented if necessary by viva

voce evidence. Consequently, the counsel to the

creditor was in error when he failed to file his counter

affidavit at the proceedings for hearing of the Inter

Pleader Summons. I further rule that the proceedings

of the Inter Pleader Proceedings by affidavit in the

matter before the Court below was valid. Evidence

existed by affidavits on which the learned trial Judge

could rule as he did and it was correctly so done."

Was the Court below right in its above decision? I shall

navigate the relevant statute and Rules for an answer anon.

Interpleader summons procedure is applicable where the

goods and/or chattels of a person not named in the writ of

fifa is attached and the person comes forward to claim his

property. In such a proceeding, as a general rule, the

claimant is deemed to be the plaintiff and the judgment

creditor, the defendant. Accordingly, the onus is generally

on the claimant, as the plaintiff in the proceedings, to

establish title to the property he claims. See Olatunde v

Obafemi Awolowo University & Anor (1998) 5 NWLR

(pt 549) 178, (1998) LPELR - 2575 (SC), Kala v

Potiskum & Anor (1998)

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3 NWLR (pt 540) 1, (1998) LPELR – 1648 (SC).

Interpleader proceedings are provided for in Section 34 of

the Sheriffs and Civil Process Act which states:

"34(1) If a claim is made to or in respect of any

property attached under process of Court, or in

respect of the proceeds or value thereof the registrar

may, upon the application of the sheriff, as well

before as after any action brought against him, issue

a summons calling before the Court the party at

whose instance the process issued and the party

making the claim.

(2) Upon the issue of the summons, any action

brought in any Court in respect of the claim or of any

damage arising out of the execution of the writ shall

be stayed.

(3) On the hearing of the summons, the Court shall

adjudicate upon the claim, and shall also adjudicate

between the parties or either of them and the sheriff

upon any claim to damages arising or capable of

arising out of the execution of the writ by the sheriff,

and shall make such order in respect of any such

claim and the costs of the proceedings as it thinks

fit."

Also, Order VI of the Judgment Enforcement Rules made

pursuant to the Sheriffs and Civil Process

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Act would be very illuminating having regard to the

procedure in hearing Interpleader actions. It states:-

Order VI

Rule 1: Any claim in respect of attached property

shall be made to the Bailiff holding the writ or to the

Sheriff.

Rule 2(1): The Sheriff shall give information of the

claim to the Registrar of the Court for the division or

district in which the property is situate.

Rule 2 (2): On the receipt of the information, the

registrar shall send notice of the claim to the

judgment creditor or plaintiff in form 42 and a notice

to the claimant in form 43.

Rule 4(1): If the judgment creditor or plaintiff does

not admit the claim, the sheriff shall, unless the

claimant has withdrawn his claim, apply for the issue

of summons in accordance with the provisions of

Section 34 of the Act.

Rule 4(2): Upon such application, the registrar shall

enter interpleader proceedings in the books of the

Court and fix a day for hearing and prepare and issue

Interpleader Summons to the Judgment Creditor or

plaintiff and the claimant in such forms in the first

schedule to the Act as are applicable to the case

and make all necessary copies therefore.

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Rule 6 (1): The claimant shall within such reasonable

time before the return day as the time of service

permits, file in the Court registry three copies of the

particulars of the property he claims and the grounds

of his claim, or in the case of a claim for rent,

particulars stating the amount thereof, and the

period and the premises in respect of which the rent

is claimed to be done.

Rule 6 (2): The claimant shall include in his

particulars a statement of his full name, address and

occupation.

Rule 6 (3): The registrar shall send copies of the

particulars to the sheriff and the judgment creditor

provided that the Court may, if it thinks fit, hear the

proceedings although the particulars have not been

filed.

I have carefully perused both Section 34 of the Sheriffs and

Civil Process Act and Order VI of the Judgment

Enforcement Rules set out above and I am unable to see

any special procedure provided for the hearing of

Interpleader proceedings. There is nowhere stated that the

trial Judge must hear oral evidence from the parties. There

is nowhere stated also that the hearing must be by affidavit

evidence

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alone. The appellants relied on the case of Kala v Potiskum

(supra) to anchor the submission that the hearing ought to

have been by viva voce evidence alone. With due respect to

the learned counsel for the appellants, the issue of whether

interpleader action should be conducted by calling oral

evidence alone was not one of the issues decided by this

Court in Kala v Potiskum (supra). Thus, this authority

does not advance the case of the appellant at all.

In his book "Practice and Procedure of the Supreme

Court, Court of Appeal and the High Courts of

Nigeria" published in 1980 by Hon. Justice Akinola Aguda

(of blessed memory), the learned Jurist states clearly that

affidavit can be used to show the claimant's interest in the

attached property. See paragraphs 30.6 at page 382, 30.7

at page 382, 30.20 at page 385. In the instant case, the

claimant filed an affidavit stating that she is in fact the

owner of the OPEL OMEGA 2.0 car with registration No.

BE 318 ENU and attached the vehicle particulars to

buttress her claim. The matter was decided based on the

affidavit evidence and the exhibits annexed. I do not see

anything wrong with that

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procedure. It is clear that where the claimant has filed an

affidavit deposing to facts in support of his claim with

exhibits if any, and the judgment creditor does not oppose

the application, the trial Court can summarily deal with the

matter and release the attached chattel or property to the

owner (claimant) if satisfied with the evidence before it. In

this type of situation, even if the wrong procedure was

followed, it cannot be a ground for dismissing the

application if it is meritorious. The days of technicalities

are over. See Holman Bros v The Compass Trading Co.

Ltd (1992) 1 NWLR (pt 217) 368 at 378, Ijewere v

Eribo (2014) LPELR - 23263 (CA).

As I said earlier, the appellant failed to show that proof by

viva voce evidence is specifically prescribed for the hearing

of Interpleader Summons. Thus the case of Raymond

Dongtoe v Civil Service of Plateau State (supra) cited

by the learned counsel for the appellants does not apply. I

agree entirely with the Court below that the learned trial

Judge was right to determine this matter by affidavit

evidence placed before him. This procedure does not rule

out oral evidence where affidavit evidence will not be

enough to

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resolve conflicts in the matter. I resolve this issue against

the appellants.

ISSUE TWO:

It is the submission of the learned counsel for the

Appellants that the materials placed before the trial Court

were defective and/or incompetent and that all that

transpired in that Court amounted to a no hearing, least,

fair hearing of the interpleader summons.

Learned counsel for the Respondent submitted that the

Appellant on his own volition deliberately failed to file a

counter affidavit and that when he asked for leave to cross

examine the claimant and was indulged, he withdrew his

application to cross examine.

I will not waste time in this issue. Counsel should know that

this Court is very busy and matters of this nature ought not

to be filed in this Court. Come to think of it. The claimant

filed an affidavit with documents annexed to buttress the

claim on the vehicle attached which she opined belonged to

her. If the judgment creditor had any facts contrary to

those deposed to in the claimant's affidavit, he would have

filed a counter affidavit. Nobody stopped him from filing a

counter affidavit. For him to refuse to file counter affidavit

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only on the ground that the procedure adopted was wrong

was self inflicted and he cannot turn around to blame

anybody that he was denied fair hearing.

In view of the fact that it was the appellants' counsel on his

own accord who declined to file counter affidavit and also

declined to cross examine the claimant even though the

trial Court afforded him the opportunity to do so, the

complaint of lack of fair hearing on this score is of no

moment. This issue is also resolved against the appellants.

Having resolved the two issues against the appellants, I

hold that there is no merit in this appeal. I affirm the

judgment of the Court of Appeal delivered on 16th October,

2008. I award costs for N500,000 against the appellants in

favour of the respondent.

Appeal Dismissed.

OLABODE RHODES-VIVOUR, J.S.C.: I have had the

advantage of reading in draft the leading judgment of my

learned brother, Okoro, JSC. I agree with it, and for the

reasons given I, too would dismiss the appeal with costs of

N500,000 against the appellants.

OLUKAYODE ARIWOOLA, J.S.C.: I had the privilege of

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reading in draft the lead judgment of my learned brother,

Okoro, JSC just delivered. I am in agreement with the

reasoning therein and conclusion arrived thereat, that the

appeal lacks merit and should be dismissed. I too will

dismiss the appeal and affirm the judgment of the Court

below given on 16/10/2008.

Appeal dismissed.

CHIMA CENTUS NWEZE, J.S.C.: My Lord, Okoro, JSC,

obliged me with the draft of the leading judgement

delivered now. I agree with His Lordship that, as a general

rule, in Interpleader Summons Procedure, the Claimant is

deemed to be the plaintiff and the judgement creditor, the

defendant. As such, the onus is always on the claimant, as

the plaintiff, to establish title to the property he claims,

Kala v. Potiskum [1998] 3 NWLR (pt. 540) 1; Jinadu v.

Babaoye (1966) 2 All NLR 241; Maigoro v. Bashir

[2000] FWLR (pt. 19) 553; [2000] 11 NWLR (pt. 679)

453; Olatunde v OAU and Anor [1998] 5 NWLR (pt

549) 178; (1998) LPELR — 1648 (SC).

It is for these, and the more elaborate, reasons in the

leading judgement that I too, hold that there is no merit in

this appeal. Appeal dismissed.

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I abide by the consequential orders in the leading

judgement.

AMINA ADAMU AUGIE, J.S.C.: I had a preview of the

lead Judgment delivered by my learned brother, Okoro,

JSC, and I adopt his reasoning and conclusion in this

Appeal.

Interpleader is a proceeding by which a person, who does

not himself claim the property, can protect himself from

legal proceedings by calling upon the Claimants to

interplead, that is, claim against each other so that the title

to the property, debt, etc., may be determined. Where a

Sheriff seizes or intends to seize goods by way of execution,

and a person, other than a Judgment debtor, claims them,

the Sheriff institutes the proceedings to determine whether

the property belongs to the Judgment debtor (therefore,

can be seized), or to the Claimant.

In this case, the Claimant, the mother of the Judgment

Debtor, who is deceased, and was substituted by the

Respondent herein, filed an Affidavit at the trial Court

stating that she is the owner of the said vehicle and she

attached the vehicle particulars to buttress her claim. So,

the matter was determined on the Affidavit evidence and

Exhibits.

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937(

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The Appellants contend inter alia that the Court of Appeal

erred when it held as follows on the procedure adopted by

the trial Court —

The proof of ownership by the Claimant may be by

way of affidavit evidence to be complemented, if

necessary, by viva voce evidence. Consequently, the

counsel to the Creditor was in error when he failed to

file his Counter-Affidavit at the proceedings - - The

proceedings of the Interpleader proceedings by

Affidavit in the matter before the Court below was

valid. Evidence existed by Affidavits on which the

learned trial Judge could rule as he did and it was

correctly so done.

It is well-settled that averments in supporting Affidavits are

evidence upon which the Court may, in appropriate cases,

act— see Magnusson V. Koiki (1993) 9 NWLR (Pt. 317)

287 SC, wherein this Court observed:

Affidavit evidence upon which applications or Motions

are largely decided are not the same thing as

pleadings in a civil suit, which are written statements

(and not evidence generally) of facts relied upon by a

party to establish his case or answer to his opponent's

case. It is in exceptional cases, for example, where

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there are irreconcilable affidavits from both sides,

that oral evidence will be allowed to be led in support

of interlocutory application - - - unlike pleadings

which will have to be supported by evidence at the

trial.

As my learned brother, Okoro, JSC, pointed out in the lead

Judgment, there is nowhere in Section 34 of the Sheriffs

and Civil Process Act, or Order VI of the Judgment

Enforcement Rules, made pursuant thereto, where it is

stated that the Court must hear oral evidence from Parties,

or that hearing in the proceedings must be by affidavit

evidence alone.

In this case, the Claimant filed an Affidavit wherein she

deposed to facts in support of her claim of ownership of the

vehicle in question, but Appellants failed, refused or

neglected to file a Counter-Affidavit. Thus, there was

nothing like "irreconcilable affidavits from both sides", to

warrant oral hearing or the taking of oral evidence from the

Parties.

Besides, it is trite law that depositions in an Affidavit,

which are not challenged, are deemed admitted —

Magnusson V. Koiki (supra). The Appellants only have

themselves to blame, faced with an Affidavit, they failed to

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file a Counter-Affidavit to controvert the facts therein,

therefore, the Court of Appeal was right to hold as it did

against them.

It is for this and the other articulate reasons in the lead

Judgment that I also dismiss this Appeal. I award same

costs to the Respondent.

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Appearances:

A. A. Ononye, Esq. For Appellant(s)

J . R . Nduka wi th h im, R .E . Nduka ForRespondent(s)

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937(

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