OBUMSELI & ANOR v. UWAKWE (2019) LPELR-46937(SC)
Issue
PRACTICE AND PROCEDURE – INTERPLEADER PROCEEDINGS –
Nature of Interpleader proceedings and whether hearing 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 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) 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 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. 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 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 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 resolve conflicts in the matter.” Per JOHN INYANG OKORO, JSC (Pp 8 – 14 Paras C – A)
✍️ C.K. ANYANWU ESQ
PUBLICITY SECRETARY,
NBA-ABA, BRANCH.