CHIEF V. C. OBUMSELI & ANOR v. CHINYELUGO P. UWAKWE
(2019) LCN/4809(SC)
In The Supreme Court of Nigeria
On Friday, the 8th day of March, 2019
SC.65/2009
RATIO
WHEN IS AN INTERPLEADER SUMMONS PROCEDURE APPLICABLE; ON WHOM RESTS THE ONUS OF PROOF IN AN INTERPLEADER PROCEEDINGS
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). PER JOHN INYANG OKORO, J.S.C.
INTERPRETATION OF THE PROVISIONS OF SECTION 34 OF THE SHERIFFS AND CIVIL PROCESS ACT AND ORDER VI OF THE JUDGMENT ENFORCEMENT RULES AS TO WHETHER THE COURT MUST CALL FOR ORAL EVIDENCE IN THE DETERMINING INTERPLEADER PROCEEDINGS OR AN INTERPLEADER PROCEEDINGS CAN BE DECIDED SOLELY ON AFFIDAVIT EVIDENCE
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). PER JOHN INYANG OKORO, J.S.C.
NATURE OF AN INTERPLEADER PROCEEDINGS
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. PER AMINA ADAMU AUGIE, J.S.C.
WHETHER THE COURT CAN RELY UPON AFFIDAVIT EVIDENCE
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 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. PER AMINA ADAMU AUGIE, J.S.C.
EFFECT OF UNCHALLENGED DEPOSITIONS IN AN AFFIDAVIT EVIDENCE
… it is trite law that depositions in an Affidavit, which are not challenged, are deemed admitted Magnusson V. Koiki (supra). PER AMINA ADAMU AUGIE, J.S.C.
JUSTICES
OLABODE RHODES-VIVOUR Justice of The Supreme Court of Nigeria
OLUKAYODE ARIWOOLA Justice of The Supreme Court of Nigeria
JOHN INYANG OKORO Justice of The Supreme Court of Nigeria
CHIMA CENTUS NWEZE Justice of The Supreme Court of Nigeria
AMINA ADAMU AUGIE Justice of The Supreme Court of Nigeria
Between
- CHIEF V. C. OBUMSELI
2. VINCO ENGINEERING SERVICES (NIGERIA) LIMITED Appellant(s)
AND
CHINYELUGO P. UWAKWE
(Substituted for Madam T. Uwakwe by Order of Court of Appeal of 19/04/07) Respondent(s)
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.<br< p=””
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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. Ononye, Esq. For Appellant(s)
R. Nduka with him, R.E. Nduka For Respondent(s)
Appearances
A. Ononye, Esq. For Appellant
AND
R. Nduka with him, R.E. Nduka For Respondent
