ADELEKE v. ADISA & ORS (2020)

ADELEKE v. ADISA & ORS

(2020)LCN/14385(CA)

In The Court Of Appeal

(AKURE JUDICIAL DIVISION)

On Tuesday, June 16, 2020

CA/AK/119/2012

Before Our Lordships:

Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal

Ridwan Maiwada Abdullahi Justice of the Court of Appeal

Patricia Ajuma Mahmoud Justice of the Court of Appeal

Between

JIMOH ADELEKE APPELANT(S)

And

ALHAJI YAKUBU OLALEKAN ADISA 2. ALHAJI AWOYEMI JAMIU 3. MR. MUILI TAYE ADISA 4. AZEEZ MUTAIRU 5. MRS. RISIKATU AGBOOLA 6. MR. LIADI AKANMU 7. THE SHERIFF/BAILIFF, HIGH COURT OF JUSTICE, OSOGBO RESPONDENT(S)

RATIO

WHETHER OR NOT A REGISTRATBLE INSTRUMENT WHICH HAS NOT BEEN REGISTERED IS ADMISSIBLE TO PROVE EQUITABLE INTEREST

It is settled law that a registrable instrument which has not been registered is admissible to prove such equitable interest and prove payment of purchase. See ADESANYA V. ADERONMU (2000) 6 SC (PT. 11) 18 and ETAJATA V. OLOGBO (2007) 16 NWLR (PT. 1061) 554.
A purchaser of land who has paid and taken possession thereof by virtue of an unregistered registrable instrument has acquired an equitable interest that it is as good as legal estate.

The equitable interest can only be defeated by a purchaser of the land for value without notice of the prior equity. See KACHALLA V. BANKI (2006) 8 NWLR (PT. 982) 364 and NSIEGBE V. MGBEMENA (2007) 10 NWLR (PT. 1042) 364. A party in possession by virtue of an unregistered instrument, and who paid the purchase price, can prove that he acquired an equitable interest in the land. In the case of OKOYE V. DUMEZ (1985) 1 NWLR (PT. 4) 783 AT 790, the Supreme Court had this to say:
“it is trite law that where a purchaser of land or a lease is in possession of the land by virtue of a registrable instrument which has not been registered and has paid the purchase money or rent to the vendor or the leaser, then in either case, the purchaser has acquired an equitable interest in the land. A registrable instrument which has not been registered is admissible to prove such equitable interest and to prove payment of purchase money or rent.”
See also ATANDA V. HON. COMM. FOR LAND AND HOUSING, KWARA STATE (2017) LPELR 42346 (SC); ALAFIA & ORS V. GBODE VENTURES (NIG.) LTD. & ORS. (2016) LPELR 26065 (SC) and ANAGBADO V. FARUK (2018) LPELR 44909 (SC). PER ABDULLAHI, J.C.A.

WHETHER OR NOT THE COURT CAN PEMIT AN AFFIDAVIT TO BE USED IN ITS DEFECTIVE FORM

Section 113 of the Evidence Act provides that; the Court may permit an affidavit to be used notwithstanding that it is defective in form. According to this Act, if the Court is satisfied that it has been sworn before a person duly authorized, the defect in form will not render the affidavit incompetent.
Section 4(2) and 4(3) of the Oaths Act provides:
4(2) No irregularity in the form in which an oath or affirmation is administered or taken shall (a) invalidate the performance of official duties; or (b) Invalidate proceedings in any Court; or (c) Render inadmissible evidence in or in respect of which an irregularity took place in any proceedings.
4(3) The failure to take an oath or make an affirmation and any irregularity as to the form of an oath or affirmation shall in no case be construed to affect the liability of a witness to state the truth…”PER ABDULLAHI, J.C.A.

INTERPLEADER PROCEEDINGS

In interpleader proceedings, the claimant is deemed to be the plaintiff and the judgment creditor, the defendant. Therefore, as a general rules, the burden of proof is on the claimant as the plaintiff, the onus lies on him to establish his title to the property, this is in tune with the law that whoever asserts must prove what he asserts. Where his claim is not absolute title, he must prove the precise interest or title he claimed. But where the claimant is in possession of the property in dispute at the time of its attachment, the judgment creditor shall in that case, be deemed a plaintiff and the burden of proof shall reverse to him and the onus must be on the judgment creditor to establish his case. PER ABDULLAHI, J.C.A.

WHETHER OR NOT THE MISTAKE OF A COUNSEL OR REGISTRAR OF THE COURT SHOULD NOT BE VISITED ON A PARTY

A party in the interest of justice must not be penalised for the error or mistake of registry in connection with its internal affairs especially where no miscarriage of justice has been shown to have been occasioned as in the instant case. It is the duty of the registry to ensure the full compliance of order with regard to forms 9 and 10. Mistake of counsel or registrar/Court should not be visited on the party. See AKPAJI V. UDEMBA (2009) LPELR 371 (SC); EDE & ANOR V. MBA & ORS (2011) LPELR 8234(SC) and WASSAH & ORS V. KARA & ORS. (2014) LPELR 24212 (SC). PER ABDULLAHI, J.C.A.

RIDWAN MAIWADA ABDULLAHI, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the High Court of Osun State, Sitting at Osogbo, delivered by S. O. Falola, J., on 22nd June, 2012 in Suit No: HOS/45/2009.

The facts of this case which gave birth to the interpleaded summons and to this appeal is that on 20th July, 2009, the Appellant as Plaintiff has sued the 7th Respondent, Mr. Laidi Akanmu as defendant and claimed the following reliefs:
a) Perpetual injunction restraining the defendant, his agents, privies and those deriving title from him further trespass on the Plaintiff’s land covered by Certificate of Statutory Right of Occupancy dated 11th March, 1996 and registered as No. 57 at page 57 in Volume 69 dated 11th March, 1996;
b) General damages in the sum of One Million Naira in favour of the Plaintiff.

The defendant had not entered appearance nor filed his defence and after the expiration of the 42 days as prescribed by the Osun State High Court Amended (Civil Procedure) Rules 2008 for filing of defence, the Appellant filed a Motion on Notice dated 18 February, 2011 for Summary Judgment and was granted on

the 24th May, 2011. Pursuant to the said summary judgment, the Appellant caused a warrant/writ of possession to be issued on 24th October, 2011, the warrant/writ of possession was executed and levied in execution of the Summary Judgment.

Thereafter, the 1st – 6th Respondents herein filed an interpleader summons on 21st May, 2012. In opposition to the interpleader summons, the Appellant filed counter affidavit but the original sole Defendant, Mr. Liadi Akanmu did not file any counter affidavit and was not represented. On 22nd June, 2012, the learned trial judge delivered his judgment in the interpleader summons in favour of the 1st – 6th Respondents and against the Appellant/Plaintiff and found that “the Plaintiff is adjudged to have wrongfully levied execution on the real properties of (1) Alhaji Yakubu Olalekan Adisa (2) Alhaji Awoyemi Jamiu (3) Mr. Muili Taye Adisi (4) Mrs. Risikatu Agboola, all of Idi Iroko Meta, off ibokun Road, Osogbo, Osun State. A costs of N250, 000.00 is awarded to each of the claimants against the Plaintiff as general damages for trespass arising from the said wrongful execution. By way of auxiliary order,

perpetual injunction is granted against the Plaintiff from trespass or further trespass on the claimant land.

Dissatisfied with the judgment, the Appellant on 13th July, 2012 lodged an 8 grounds Notice of Appeal seen at pages 187-193 of the record. By the leave of this Court, the Appellant filed an Amended Notice of Appeal on 15th May, 2017 but deemed properly filed on 30th April, 2018, containing 11 grounds of appeal and prayed this Court:
1. To set aside the judgment or decision of the Court below.
2. To give judgment to the Plaintiff/Appellant by striking out or dismissing the Claimants/Respondents interpleader summons.

Thereafter, the parties filed and exchanged their briefs of argument in line with the rules regulating the hearing of Civil Appeal in this Court except the 7th and 8th Respondents. The appeal was heard on 23rd January, 2020.

During its hearing, learned counsel for the Appellant Olusola Ajao Esq., adopted the Appellant’s brief of argument, filed on 29th July, 2015 and deemed properly filed on 30th April, 2018, settled by G. Olatayo Aminu, Esq., as representing his argument for the appeal. He urged the Court to

allow the appeal. Similarly, learned counsel for the 1st – 6th Respondents Oluwagbenga Awoyemi, Esq., adopted the 1st – 6th Respondents’ brief of argument filed on 15th February, 2016 and deemed properly filed on 30th April, 2018, as forming their reaction against the appeal. He urged the Court to dismiss it.

In the Appellant’s brief of argument, he crafted five issues for determination to wit:
1) Whether the learned trial judge was right in relying on and taking into consideration (and in not discountering or expunging) the Claimants/Respondents’ Exhibits A, E, H and K (the 1st, 2nd, 3rd and 4th Claimants/Respondents for sale of Land agreements, which are registerable land instruments but were not registered thereby rendering them inadmissible in any event.
2) Whether the learned trial judge was right when his lordship neglected, refused or failed to strike out paragraph 4, 5, 6, 7, 8, 9 and 10 of the affidavit in support of the claimants/respondents claims to deposed to by their counsel, Alabi O. Olalekan on 21st May, 2015 for offending/contravening Sections 38, 126 and 115(1) and (4) of the Evidence Act, 2011.

Since the source of the deponent (a counsel in the Claimants’ Counsel Law Firm) information was not disclosed in the affidavit in support and the name of the person that gave the deponent the information was not disclosed nor stated in each of the respective paragraphs and when the content of paragraph 10 thereof was clearly hearsay evidence.
3) Whether the learned trial judge was right in finding for the claimants/respondents and in holding that the Plaintiff/Appellant had wrongfully levied execution on the property and or building of the 1st, 2nd, 3rd, 4th, 5th and 6th claimants/respondents at Idi- Iroko Meta, off Ibokun Road Osogbo, Osun State when the 1st, 2nd, 3rd, 4th, 5th and 6th Claimants/Respondents did not prove their title to the said property and/or building. When their affidavit evidence on the said property or building were fundamentally contradictory and thus unreliable and when the Plaintiff/Appellant had amply proved a better title to the land in dispute (one acre) on which the Claimants/Respondents had flagrantly and recklessly built/put up some buildings/structures in disobedience of the lower Court’s summary judgment.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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4) Whether forms 9 and 10 as the purported interpleader summons filed on 21st May, 2012 on behalf of the 1st, 2nd, 3rd, 4th, 5th and 6th claimants/respondents but signed by His Lordship, the learned trial judge in this case and dated 23rd May, 2012 purportedly supported by an 18 paragraphs affidavit deposed to by one Alabi O. Olalelan, a counsel in the claimants’ law firm are not incompetent under Section 27 of the Sheriffs and Civil Process Law, Cap. 148, Laws of Osun State, 2012 and Order 6 Rules 1, 2, 3, 4 and 6 of the Judgment (Enforcement) Rules and so should not have been struck out.
5) Whether the trial Court was right in law to have granted perpetual injunction against the plaintiff/appellant from trespass or further trespass on the claimants/respondents’ land and the sum of N250,000.00 to each of the claimants/respondents against the plaintiff/appellant as general damages for trespass arising out of the wrongful execution when the claimants/respondents did not pray or ask for either of these reliefs/prayers.

Learned counsel for the 1st – 6th respondents distilled six (6) issues for determination as follows:

What was the principal issue before the trial Court in determining the interpleader summons and did the Court depart from the evidence adduced and the Law in giving its judgment.
2. Whether or not the title deeds added by the Respondents to the affidavit in support of the interpleader summons is admissible and if rejected could have altered the judgment.
3. Whether it was right for the learned trial judge not to have struck out paragraphs 4, 5, 6, 7, 8, 9 and 10 of the affidavit in support of the interpleader summons and if struck out could have altered the judgment.
4. Whether or not the Appellant wrongfully levied execution on the respondents properties.
5. Whether or not the failure of the Courts (not Respondents) to produce forms 9 and 10 of the purported interpleader summons was fatal to the summons and whether or not forms 9 and 10 were produced by the Court.
6. Whether or not the award of Two Hundred and Fifty Thousand Naira (N250, 000.00) to each of the Respondents was right.

The 7th and 8th Respondents did not file any process and they were served with hearing notices.

A close look at the two sets of issues tabled by the

parties for the determination of this appeal shows that they are identical in substance. Therefore, I will decide the appeal on the issues formulated by the Appellant.

ARGUMENTS ON THE ISSUES
ISSUE ONE
Learned counsel for the Appellant submitted that the Claimants/Respondents only attached Exhibits A, E, H and K to affidavit in support i.e the 1st, 2nd, 3rd and 4th Respondents’ sale of land agreement. That there was no evidence of the 5th and 6th Respondents ownership of any part of the land in dispute, therefore said counsel there is no basis for the learned trial judge to have adjudged that the Plaintiff have wrongfully levied execution on the disputed property.

Learned counsel reasoned that Exhibit A, E, H and K are registrable land instrument and were mandatorily required by the provision of Sections 2, 6, 7 and 16 of the Land Instruments Registration Law, Chapter 64, Laws of Osun State, 2002 to be registered before they could be admissible in evidence. That Exhibit A, E, H and K having not been registered, were inadmissible and the learned trial Judge was wrong to have considered and relied on them. He cited the cases of

RAPHAEL WAKA OGBIMI V. NIGER CONST. LTD. (2006) ALL FWLR (PT. 317) 390 and SAVANNAH BANK PLC. V. IBRAHIM (2000) ALL FWLR (PT. 25) 1626.

Counsel submitted that where a document is inadmissible in evidence, neither parties nor their counsel can by consent or otherwise render the document admissible and where inadmissible evidence had been inadvertently or improperly received in evidence by the Court, even when no objection had been raised, it is the duty of the Court when considering its judgment to expunge such evidence. He cited ALHAJI HAMDANA KANKIA V. ALI MAIGEMU & ORS. (2004) ALL FWLR (PT. 206) 460 for the view. He urged the Court to resolve this issue in favour of the Appellant and dismiss the Respondents interpleader.

Learned counsel for the 1st – 6th Respondents submitted via their issue two that document were attached to describe the land and to show an equitable interest in the disputed land but not to prove a legal title. Counsel refers to paragraphs 4(b) of the affidavit of Alabi Olalekan. He reproduced paragraphs 4(b) thus. “That the Applicant bought his land with a land sales Agreement dated 27th January, 2007 from Ganiyu Agbaje and the

description of the land is as contained in the said agreement which is herewith attached as Exhibit ‘A’ in proof of the fact that he has an equitable title to the land.”

Counsel submitted that Section 2 of the Land Instruments Registration Law permits the admissibility of unregistered registrable instruments as a memorandum of sales. It is regarded as evidence of the payment of money and if coupled with possession it gives to an equitable interest enforceable by specific performance. He cited BURAIMOH V. KARIMU (1999) 9 NWLR (PT. 618) 318 for the view. He urged the Court to resolve this issue in favour of the Respondents.

RESOLUTION
Learned counsel for the Appellant contended that the sale of land agreement attached to the Respondents’ affidavit in support of their interpleader that is Exhibits A, E, H and K are registrable Instrument and are required to be registered under Sections 2, 6, 7 and 16 of the Land Instrument Registration Law for it to be admissible in evidence. That having not been registered, the said Exhibits are inadmissible in evidence.
It is settled that any instrument requiring registration remains

ineffective unless and until it is registered, it cannot be pleaded or given in evidence. Although, the Land Instrument Registration Law of Osun State forbids the pleading and tendering of unregistered registrable instrument in proof of title to land, such a document is admissible to prove an equitable interest and payment of purchase money.
The Appellant grouch is centred around Exhibits A, E, H and K, it is an agreement of sales of land. It is an unregistered registrable instrument which should be ordinarily inadmissible in law. Nonetheless, the Respondents pleaded it as evidence of sale, it was tendered and admitted as evidence of purchase and to prove equitable interest in which case it would be admissible. It is settled law that a registrable instrument which has not been registered is admissible to prove such equitable interest and prove payment of purchase. See ADESANYA V. ADERONMU (2000) 6 SC (PT. 11) 18 and ETAJATA V. OLOGBO (2007) 16 NWLR (PT. 1061) 554.
A purchaser of land who has paid and taken possession thereof by virtue of an unregistered registrable instrument has acquired an equitable interest that it is as good as legal estate.

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I have examined the documents sought to be crucified (Exhibit A, E, H and K) and of course all other documents before the Court. In my humble view, the documents/ Exhibits are pure Sales Agreement and tendered to establish an equitable interest. Paragraphs 4(b), 5(b), 6(b) and & 7(b) of the Respondents’ pleadings shown that Exhibits A, E, H and K were tendered to prove an equitable interest of the Respondents.
Paragraph 4(b) reads “That the applicant bought his land with a land Sales Agreement dated 27th January, 2007 from Ganiyu Agbaje and the description of the land is as contained in the said Agreement which is herewith attached as Exhibit ‘A’ in proof of the fact that he has an equitable title to the land.”
Paragraph 5(b) says: “That he bought his land via a land sale Agreement dated 18th day of February, 2004 from Mrs. Rafatu Fatai and the description of the land is as contained in the said Agreement which is herewith attached as Exhibit ‘E’ in proof of the fact that he has an equitable title in the land.”
Paragraph 6(b) states “That he bought his land via a land Sale

Agreement dated 27th day of February, 2007 from Mr. Ganiyu Agbaje and the description of the land is as contained in the said Agreement which is herewith attached as Exhibit ‘H’ in proof of the fact that he has an equitable title to the land.”
Paragraph 7(b) says “That he bought his land vide a land Sale Agreement dated 6th day of December, 2008 from Mrs. Risikat Lamidi and the description of the land is as contained in the said Agreement which is herewith attached as Exhibit ‘K’ in proof of the fact that he has an equitable title in the land.”
Clearly, Exhibits A, E, H and K though registrable instruments were tendered to establish and or prove equitable interest of the Respondents and therefore admissible. The Exhibits were not tinted with any element of inadmissibility to warrant its being expelled.
Issue one is resolved against the Appellant.

ISSUE TWO
Learned counsel for the Appellant submitted that paragraphs 4, 5, 6, 7, 8, 9 and 10 of the Respondents affidavit in support deposed to by their counsel contravened the provisions of Section 115(1)-(4) of the Evidence Act 2011. He reproduced the

provision of the Section and submits that the Defendants merely referred to “the 1st Applicant”, “the 2nd Applicant”, “the 3rd Applicant’, “the 4th Applicant”, “the 5th Applicant”, “the 6th Applicant” in his paragraphs 4,5,6,7,8 and 9 as the source of his information when there was no ‘Applicant’ in the processes filed by Respondents.

Counsel submitted that Section 115(4) of the Evidence Act 2011, requires a deponent to disclose the names of his information and not merely their status, circumstances of his belief. That none of the claimants was referred to as the Applicant in their processes. That in paragraph 10 of the same affidavit, the deponent was allegedly said to be informed by the claimants that paragraph 10 of the affidavit to the fact of traditional history of the claimants is hearsay.

Learned counsel submitted that where a deponent deposes to facts not within his personal knowledge, he must disclose the source of his information and if the source is a person, he must disclose the names of his informants (not merely their status) circumstances of his belief,

otherwise the paragraphs will be incompetent and liable to be struck out. He urged the Court to strike out paragraphs 4, 5, 6, 7, 8, 9 and 10 and resolve this issue in favour of the Appellant.

On the part of the 1st-6th Respondents, learned counsel for the Respondents submitted that the 1st Claimant is named on the face of the affidavit. That the era of technicality is gone. He cited ENGINEERING ENTERPRISE OF NIGER CONTRACTOR COM. NIG. V. A.G. KADUNA STATE (1987) 2 NWLR (PT. 57) 381 and A.G. BENDEL STATE V. A.G. FEDERATION & ORS. (1981) 10 SC 1 for the point.

Counsel submitted that the affidavit did not contravened the provision of Section 115(1)-(4) of the Evidence Act, 2011. He urged the Court to resolve this issue in favour of the Respondents.

RESOLUTION
I have carefully looked at the affidavit in support of the 1st-6th Respondents interpleader shown to have been sworn at the High Court Registry of Osun State, Osogbo on 12th day of May, 2012 which spans pages 62-68 of the record of appeal. There is no doubt that the Respondents in support of their interpleader had deposed to an affidavit and in paragraphs 4-10 of the said affidavit had deposed thus

paragraph 4, “That the 1st Applicant informed me at our Law Firm on 18th day of May, 2012 at about 3pm and I verily believe him of the following facts…” Paragraphs 5, 6, 7, 8 and 9 have similar contents.
Paragraph 10 reads as follows:
10. “That the Claimants informed me at our Law Office at about 3pm on 18th day of May, 2012 and I verily believe them of the underlisted facts to wit…”

I observed that the defects which forms the fulcrum of the Appellant in this issue is that there is no name of the person from whom the deponent derived his information rather that the Applicants/Claimants informed him. I have earlier on set out in this judgment the complaint by the Appellant on the premise that the affidavit in support of the Respondents interpleader failed to conform with the requirement of the Oaths Act. The Respondents is of the view that the omission by the deponent to comply with the form, amount to irregularity which should not render the affidavit incompetent or render incompetent on technicalities.
Section 113 of the Evidence Act provides that; the Court may permit an affidavit to be used notwithstanding

that it is defective in form. According to this Act, if the Court is satisfied that it has been sworn before a person duly authorized, the defect in form will not render the affidavit incompetent.
Section 4(2) and 4(3) of the Oaths Act provides:
4(2) No irregularity in the form in which an oath or affirmation is administered or taken shall (a) invalidate the performance of official duties; or (b) Invalidate proceedings in any Court; or (c) Render inadmissible evidence in or in respect of which an irregularity took place in any proceedings.
4(3) The failure to take an oath or make an affirmation and any irregularity as to the form of an oath or affirmation shall in no case be construed to affect the liability of a witness to state the truth…”
I don’t think that non compliance with the form is such a fundamental vice that renders it completely defective, it is a mere irregularity. The affidavit having substantially conformed to the requirements of the Oaths Act, and having been duly sworn to before the Commissioner for Oath and satisfied by the Court, the days of technicalities are indeed over; substantial and fundamental

justice means deciding a case on merit.
Issue two is resolve against the Appellant and in favour of the Respondents.

ISSUES 3 AND 4
That takes me to a consideration of issues three and four which queries the sufficiency of the evidence of the Respondents to warrant the lower Court’s decision/grant of the Respondents’ claim.

Learned counsel for the Appellant submitted that the Respondents did not discharge the burden of proof to establish their title to the attached property in dispute placed on them as the claimants in the interpleader. That in interpleader proceedings, the claimants is generally deemed to be the Plaintiff and the judgment creditor as the defendant. That the onus lies on them. That where the claim is not absolute title, he must prove the person’s interest to title he claimed and where the claimant is in possession at the time of the attachment, the judgment creditor shall be deemed a plaintiff and the burden of proof reverse to him. He cited KALA V. POTISKUM (1998) 1 SCNJ 143 AT 150 and W. A COTTON LTD & ANOR. V. IBRAHIM HARUNA (2008) ALL FWLR (PT. 416) 1942 for the view.

Learned counsel submitted

that the Respondents gave three different addresses or location of their alleged property which shows contradictory location of the Respondents alleged land or property.

He argued that the Appellant having adduced evidence of his root of title, acts of ownership and possession of his land and having been tied with his survey plan, his evidence is more certain, specific and sufficiently described the land in dispute.

He submitted that interpleader summons was brought under Section 27 of the Sheriffs and Civil Process Law Cap. 148, Laws of Osun State 2002 and Order 6 Rules 1, 2, 3, 4 and 6 of the Judgment (Enforcement) Rules.

That the said Sections had laid down the step for interpleader proceedings. That where the word shall is used in any legislation or rules of Court, it complies the mandatoriness of the procedure and that Rule of Court are made to be obeyed. He cited AGIP (NIG.) LTD. V. AGIP PETROL INTERNATIONAL (2010) ALL FWLR (PT. 520) 1198; FBN PLC. V. T.S.A INDUSTRIES LTD. (2010) ALL FWLR (PT. 537) 633; USMAN ALI MAITSIDAU V. ENGR. HAMISU IBRAHIM CHIDARI (2008) ALL FWLR (PT. 438) 355 AT 368; OWNERS OF THE MV “ARABELLA” V. NIGERIA AGRICULTURAL INSURANCE CORPORATION

(2008) ALL FWLR (PT. 443) 1208 for the points.

Counsel submitted that the failure of the Respondents to comply with the above provisions renders the proceedings and the Respondents claims at the trial Court incompetent and the trial Court ought to have struck out the Respondents alleged summons or forms 9 and 10 as being incompetent. That the registry did not fail to do anything required of it as erroneously held by the trial Court. He urged the Court to so hold and strike out the application.

Learned counsel for the Respondents submitted that the Respondents took out interpleader summons in which they claimed the Appellant’s land as described in their certificate of occupancy and the survey plan upon which the lower Court relied and gave the summary judgment was different from the location of the Respondents’ property. That the Appellant’s certificate of occupancy and survey plan described their land as being located at near Alaape stream. That the learned trial Judge after examining and evaluating the affidavit evidence before the Court, he concluded that the judgment he gave in the previous case that is

between the Appellant and Mr. Liadi which was based on the Appellant’s Certificate of Occupancy could not have been executed against the Respondents’ land. That a document tendered is the best proof of the contents therein. He cited ANYANWU V. ALOYSIUS (2009) 40 NSCQR. 90.

Learned counsel submitted that the burden of proof is on the Appellant as what they claimed and granted is specifically within their knowledge.

Counsel submitted that the Appellant’s land as described in their certificate of occupancy and survey plan is different from that of the Respondents as equally described in their certificate of occupancy. That the Appellant’s by their counter affidavit admitted that the lands are two different lands as the location and area are not the same.

On the Appellant’s contended that the Respondents did not comply with the Rules for the assurance of forms 9 and 10, learned counsel submitted that a proper reading of Rules will show that forms 9 and 10 are the business of the Court’s registry. That the claimants duly filed forms 9 and 10 and were signed by the Judge and beside parties cannot be punished for the

error of Court’s registry. He cited ADELEKE V. OYO STATE HOUSE OF ASSEMBLY (NO. 1) (2006) 52 NRN AT 173. He urged the Court to resolve this issues in favour of the Respondents.

RESOLUTION
In interpleader proceedings, the claimant is deemed to be the plaintiff and the judgment creditor, the defendant. Therefore, as a general rules, the burden of proof is on the claimant as the plaintiff, the onus lies on him to establish his title to the property, this is in tune with the law that whoever asserts must prove what he asserts. Where his claim is not absolute title, he must prove the precise interest or title he claimed. But where the claimant is in possession of the property in dispute at the time of its attachment, the judgment creditor shall in that case, be deemed a plaintiff and the burden of proof shall reverse to him and the onus must be on the judgment creditor to establish his case.

In the instant case, the 1st – 6th Respondents took out an interpleader summon against the Appellant for wrongfully levy execution against their property and claimed as follows:
“Whereas … all of Idi Iroko Meta, off Ibokun Road, Osogbo, Osun State,

who are businessmen and Islamic clerics respectively have made a claim to the piece or parcel of land and the building thereon situate, lying and being at Idi Iroko Meta, off Ibokun Road, Osogbo, taken in execution under process issuing out of this Court at your instance and have also claimed from you (the Plaintiffs/Respondents) the sum of One Million Naira (N1, 000, 000.00k) each for damages arising out of the said execution.”

The case was fought squarely on the affidavit/documentary evidence, certificate of occupancy was tendered to identify and described the land of both parties. The Respondents were shown to be in possession by the available evidence before the Court. The Appellant’s certificate of occupancy described the land as being and located at Ayo Coker near Alaape Stream.

The Appellant in paragraph 36 of his counter affidavit averred thus:
“That I know that the land sold to me and my brother is not at Oke Elero Area, Osogbo at all nor at Idi Iroko Meta Area, Osogbo (which is before Alaape Stream Area) but at Alaape Stream Area Osogbo, though both Alaape Stream Area and Idi Iroko Meta Area are on Aye Coker Road, Osogbo.”

The learned trial Judge after evaluating the evidence held at page 185 of the record thus:
“It is too late in the day for the plaintiffs to change the location of their land as expressed in the certificate of occupancy through affidavit evidence. By this the issue has been put clear and succinct that the land claimed by the plaintiffs is different from the land of the claimants. That being the case, it has been established that the land over which the plaintiffs obtained judgment in line with their certificate of occupancy is different from the land of the claimants over which execution of the judgment was levied…”

The learned trial Judge findings in my respective view is unimpeachable. I so hold.

Learned counsel for the Appellant contended that the Respondents failed to comply with the provision of Order 6 of the Judgment (Enforcement) Rules and Section 27 of the Sheriff and Civil Process and that the failure in forms 9 and 10 is not of the Court registry/registrar.

A party in the interest of justice must not be penalised for the error or mistake of registry in connection with its internal affairs

especially where no miscarriage of justice has been shown to have been occasioned as in the instant case. It is the duty of the registry to ensure the full compliance of order with regard to forms 9 and 10. Mistake of counsel or registrar/Court should not be visited on the party. See AKPAJI V. UDEMBA (2009) LPELR 371 (SC); EDE & ANOR V. MBA & ORS (2011) LPELR 8234(SC) and WASSAH & ORS V. KARA & ORS. (2014) LPELR 24212 (SC). The Registrar is to take the forms 9 and 10 to the Judge in chamber to sign which is an administrative affairs, the claimants have no duty to supervise the Registrar to the Judge. The forms were shown to have been signed by the Judge. The Respondents as claimants did all that they were expected to do and cannot be made to suffer or be blamed for the act or omission of the registry, if any. Beside, it is not every error where shown to be one that will occasion a reversal of a decision. For an error to upset a decision, it must be substantial which has not been shown in this case. See OHAKIM V. AGBASO (2010) 19 NWLR (PT. 1226) 172 and UCHA V. ELECHI (2012) 13 NWLR (PT. 1317) 330.

Gleaned from the evidence as

borne by the record, I do not agree with the learned counsel for the Appellant that the interpleader is incompetent.
Issues 3 and 4 are resolved against the Appellant.

ISSUE FIVE
Learned counsel for the Appellant submitted that the Respondents had failed to strictly prove the damages. That they failed to prove their entitlement for damages. That no particulars of the damages were given apart from the inadmissible evidence of the Respondents’ lawyer. That a claim for special damages must be strictly proved.

Counsel argued that the grant of the Respondents’ interpleader, the damages and injunction reliefs must also fail as the Respondents did not ask for the reliefs granted. He cited the case of PROF. AJIBAYO AKINKUGBE V. EWULUM HOLDING (NIG.) LTD. & ANOR (2008) ALL FWLR (PT. 423) 1269 for the view.

Counsel submitted that the Respondents case is not maintainable for the failure of the Respondents to prove the identity of their alleged land. That the identity of the land in dispute must be precisely pleaded and proved before an injunction can be validly granted. He cited OBA JAMES ADELEKE V. WAFIU ADEWALE LAWAL (2014) ALL

FWLR (PT. 710) 1226. That reliefs are granted to plaintiff if he succeeds in proving his claim. He urged the Court to resolve this issue in favour of the Appellant.
Learned counsel for the Respondents did not react to this issue.

RESOLUTION
A claim for general damages need not be specially or specifically pleaded or proved by evidence. Unlike special damages which must be pleaded specially and proved strictly. It is presumed by law to be direct and probable consequence of the act of the defendant complained of. See UBN PLC V. CHIMAEZE (2014) LPELR 22699 (SC) and ENEH V. OZOR & ANOR (2016) LPELR 40830 (SC).

I have set out the Respondents claim at the trial Court elsewhere in this judgment, even at the risk of repetition, I wish to reproduce the claims as follow:
“WHEREAS (I) Alhaji Yakubu Olalekan Adisa (II) Alhaji Awoyemi Jamiu (iii) Mr. Muili Taye Adisa (iv) Azeez Mutairu (v) Mrs. Risikatu Agboola and (vi) Mrs. Silifatu Abimbola, all of Idi-Iroko Meta off Ibokun Road, Osogbo, Osun State who are businessmen and Islamic clerics respectively have made a claim to the piece or parcel of land and their buildings thereon situate,

lying and being at idi Iroko Meta, off Ibokun Road, Osogbo taken in execution under process. Issuing out of this Court at your instance and have also claimed from you (the plaintiff/respondents) the sum of One Million Naira (N1, 000, 000.00k)) each for damages arising out of the said execution.”

Clearly, the Respondents had set out a claim for damages and it is not in form of special damages which must be specifically pleaded and strictly proved. At page 186 of the record of appeal, learned trial judge held thus:
“…A cost of N250,000.00 is awarded to each of the claimants and against the plaintiffs as general damages for trespass arising out of the said wrongful execution…”

The Judge may for the purpose of any interpleader proceedings, make all such orders as to costs and all other matters as may be just. See Osun State High Court Amended (Civil Procedure) Rules. I cannot fault the decision of the learned trial Judge. I so hold.

On the issue of the identity of the land in dispute, I have already provided an answer to the belated issue of identity in my treatment of issues 3 and 4. The Appellant cannot base any argument

on the identity of the land. The Appellant action leading to this appeal against one Mr. Liadi Akanmu and secured a judgment against the said defendants and levied execution. The lower Court upon interpleader application by the Respondents found that the invasion to levy execution was wrongfully executed against the Respondents’ properties which has no nexus with the one claimed by the Appellant. The lower Court in its judgment found that the land over which the Appellant’s Certificate of Occupancy upon which the judgment was given is different and not the same land claimed by the Respondents/Applicants which the Appellant invaded to levy execution.

It is my respective view that the Appellant obviously have no case based on the identity of the lands in question. The land is certain and precise.

Issue 5 is resolved against the Appellant and in favour of the Respondents.

On the whole, having resolved the five (5) issues against the Appellant, the appeal is bereft of any merit and deserves the penalty of dismissal. Accordingly, I dismiss the appeal. I affirm the judgment of the lower Court delivered on 22nd June, 2012.

The parties shall bear the respective costs they incurred in the prosecution and defence of the appeal.

MOHAMMED AMBI-USI DANJUMA, J.C.A.: I have perused the draft of the leading Judgment anchored by my learned brother, Ridwan Maiwada Abdullahi, JCA before now, and agree that the appeal be dismissed on the resolution of all the 5 (five) issues raised in favour of the Respondents.
Appeal dismissed.

PATRICIA AJUMA MAHMOUD, J.C.A.: I have read in draft the judgment of my learned brother Ridwan M. Abdullahi, JCA. I am in full agreement with it that this appeal be dismissed for lacking in merit. I however wish to add only a few comments.

The case that resulted in this appeal was contested on interpleader proceedings in the lower Court. I agree with my learned brother that the finding of the learned trial judge was impeachable when he held that:
“It is too late in the day for the Plaintiffs to change the location of his land expressed in the certificate of occupancy through affidavit evidence. By this, the issue has been put clear and succinct that the land claimed by the plaintiff is different from the land of the claimants. That being the case,

it has been established that the land over which the plaintiff obtained judgment in line with his certificate of occupancy is different from the land of the claimants over which execution of judgment was levied…“

In interpleader proceedings, the burden is generally on the claimant as the plaintiff, to establish his title to the property in dispute. However, where the claimant is in possession of the property in issue at the time of its attachment, the judgment creditor shall be deemed a plaintiff and that burden of proof shall be on him. See KALA V. POTISKUM (1998) 3 NWLR, PT 540, 1; OLATUNDE V. O.A.U. (1998) 5 NWLR, PT 549, 178 and WAWU V ABDULLAHI (2018) LPELR- 45382 (CA).

It was perfectly in order therefore that the learned trial Court reversed the onus of proof and put it not on the claimant but on the Plaintiff/Judgment Creditor. If as in this case the Plaintiff/Judgment Creditor failed to prove his entitlement to the interpleaded property the trial judge rightly found against him.

For this and the more comprehensive reasons given in the lead judgment, I too dismiss this appeal and affirm the decision of the trial lower Court. I make no order as to cost.

Appearances:

Olusola Ajao, with him, Adekunle Badejoko, Esq. For Appellant(s)

Oluwagbenga Awoyemi, Esq. – for 1st – 6th Respondents
7th and 8th Respondents served with hearing notice, not in Court and no representation For Respondent(s)

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