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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SC)
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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9) LP
ELR-46
937(
SC)