MOHAMMED & ORS v. AMANA & ANOR
(2022)LCN/17118(CA)
In The Court Of Appeal
(KADUNA JUDICIAL DIVISION)
On Friday, February 18, 2022
CA/K/174/2021
Before Our Lordships:
Fatima Omoro Akinbami Justice of the Court of Appeal
Abubakar Mahmud Talba Justice of the Court of Appeal
Peter Oyinkenimiemi Affen Justice of the Court of Appeal
Between
1. HON. SANUSI MOHAMMED 2. ALHAJI SALISU MUSA ABDULAHI 3. CONTINENTAL MOTORCARS LIMITED APPELANT(S)
And
1. HALIDU MOHAMMED AMANA 2. DEPUTY SHERIFF, HIGH COURT OF JUSTICE, KADUNA STATE RESPONDENT(S)
RATIO
THE DEFINITION OF THE TERM “INTERPLEADER”
Interpleader is a proceeding by which a person, who does not himself lay any claim to a property, debt, etc. can protect himself from legal proceedings by calling on the parties to interplead (i.e. claim against each other) so that title thereto may be determined. The procedure is applicable where the goods and/or chattels of a person not named in the writ of fifa are attached and that person comes forward to claim his property. See OBUMSELI v UWAKWE [2019] 11 NWLR (PT. 1683) 205 at 218, 222. The objective of interpleader proceedings is to determine whether property or goods seized or intended to be seized by way of execution belongs to the judgment debtor [and therefore can be so seized] or to the claimant [and therefore cannot be seized]. Either the Sheriff or his deputy, or the claimant, may initiate an interpleader proceedings for the Judge to summarily determine the question at issue and make an order accordingly on such terms as may be just. The Sheriff or his deputy who initiates an interpleader proceedings has no personal stake in the matter: he is merely required to present the summons before the Court, whilst the true parties are the claimant [who is asserting title to the attached property] and the judgment creditor at whose instance the property in dispute was attached. Thus, the claimant is the proper plaintiff, whilst the judgment creditor is the proper defendant. Since the burden of proof generally lies on the party asserting the positive and it is he who would fail if no evidence were adduced on either side, the onus lies on the claimant to establish his title to the property in dispute, or where his claim is not absolute title, he must prove his precise interest in the property alleged to have been wrongly attached. See BARCLAYS BANK DCO v J. A. BADERINWA, IN RE L.E.D.B. (1962) ALL NLR 731 at 734, N.A.B. v ABDULLAHI [2000] 6 NWLR (PT. 662) 549, GABRIEL OLATUNDE v OBAFEMI AWOLOWO UNIVERSITY & ANOR (1998) LPELR–2575 (SC) and OBUMSELI v UWAKWE supra. It would seem, however, that where the claimant was in possession of the property in issue at the time of its attachment, it would seem that the judgment creditor shall, in that case, be deemed a plaintiff and the burden of proof shall reverse accordingly. See KALA v POTISKUM (1998) 1-2 SC 132, (1998) LPELR-1648(SC) 1 at 25 (citing RABIU JINADU v BABAOYE (1966) 2 All N.L.R. 241 –per Taylor, CJ). PER AFFEN, J.C.A.
WHETHER OR NOT AN APPEAL CAN OPERATE AS A STAY OF EXECUTION
The general rule is that an appeal does not operate as stay of execution or proceedings. See OGUNREMI v DADA (1962) 2 SCNLR 417. In practice however, once an appeal has been entered, the res in the appeal automatically passes into the custody of the appellate Court and “[i]t only stands to reason that two masters cannot steer the same boat. The High Court must yield to the Court of Appeal whenever an appeal against a trial Court’s decision has been entered at the Court of Appeal. This is because, being a final decision of the High Court, there is nothing left for it to decide. Immediately the Court of Appeal receives the record of proceedings, everything must be brought to the jurisdiction of the higher Court. The same principle holds good for the relationship between this Court and the Supreme Court so that immediately a final appeal or even an interlocutory appeal is entered there, the Court of Appeal, ceases to have jurisdiction on the matter. Really, there should not have been any argument about the old age tradition now codified in the rules of Court”: IKPEAZU v OGAH (2016) LPELR-40845(CA) 1 at 22-23 –per Ogunwumiju JCA (now JSC). See also ABINA v TIKA TORE PRESS (1968) 1 ALL NLR 210, (1968) LPELR-25528(SC), OGUNREMI v DADA (1962) 2 SCNLR 417, EZEOKAFOR v EZEILO [1999] 9 NWLR (PT. 619) 513 and DINGYADI & ANOR v INEC & ORS (2011) LPELR-950(SC) 1 at 35-36 –per Adekeye, JSC. Thus, once a lower Court becomes aware of, or its attention is adverted to, the fact that an appeal against its decision has been entered in a higher Court, the lower Court would usually defer to the higher Court by refraining from continuing with proceedings or otherwise entertaining and determining any pending application that has a bearing on the appeal until and unless the appeal is disposed of one way or another.
However, because foisting a stay of proceedings on a lower Court merely on the ground that an appeal has been entered in a higher Court is fraught with the potential of the appeal process being abused or deployed to serve ends other than the dictates of justice, a fine but necessary distinction is often drawn between final and interlocutory appeals; and it would seem that in respect of interlocutory appeals, the question of whether or not the lower Court ought to stay its proceedings is dictated by the demands of justice in any particular case. In JIMI ODUBA v C.V. SCHEEPV AARRTONDERNEMING HOUTMANGRACHT & ANOR [1997] 6 NWLR (PT. 508) 185 at 205–206 (an appeal revolving around the issue of security for costs ordered by the trial Court), the Supreme Court (per Belgore JSC, as he then was) opined thus: “I agree with my learned brother, Iguh JSC that the main achievement of this matter travelling up to this Court was to frustrate the expeditious trial of the substantive case that has been lying dormant for almost nine years due to stay of proceedings the appellant procured. It is true that out of respect for hierarchy of Courts, once an interlocutory appeal is entered, the lower Court stays proceedings in many cases voluntarily. But whether the stay is voluntary by the trial Court or on it is being moved so to do, regard must be given to the overriding principle of justice of the case. If the stay of proceedings, by the nature of the case, will tend to stifle the case and cause great inconvenience and/or great loss to the person who wishes to proceed with the hearing, the trial Court should not stay the proceedings unless ordered by a Superior Court.” Not dissimilarly, this Court (per Yahaya JCA) held in IKPEAZU v OGAH supra at p. 23 that: “Once an appeal is entered in this Court, all Courts below should hands off. When a Court makes a ruling, in the course of hearing a substantive suit, a party dissatisfied, may appeal it. The record in respect of the ruling is then transmitted to the Court of Appeal for determination. Once that is done, the Court will cease to have jurisdiction in respect of the subject of the ruling, but would have the jurisdiction to continue with the substantive suit, as the record of it, has not been transmitted to the Court of Appeal.” PER AFFEN, J.C.A.
THE POSITION OF LAW ON WHEN AN APPEAL IS SAID TO BE ENTERED
By Order 4 Rules 10 and 11 (1) of the Court of Appeal Rules 2021, an appeal is entered when the record has been received in the Registry of this Court within the time prescribed by the Rules or within such other extended time as ordered by the Court; and upon entry of an appeal and until it has finally been disposed of, the Court shall be seised of the whole proceedings as between the parties thereto and every application therein shall be made to the Court and not to the Court below except otherwise provided in the Rules. It was in apparent obedience to the provisions of the Court of Appeal Rules that the lower Court declined to hear the interpleader summons, without saying so expressly. But the lower Court clearly lost sight of, and did not factor in, the provisions of Order 4 Rule 11(2) to the following effect: “Nothing in Sub-rule (1) above shall be construed as requiring the lower Court to order stay of proceedings, or adjourn sine die, proceedings in relation to matters or proceedings in the lower Court that are not impacted by or to which the appeal entered in the Court of Appeal does not relate”. PER AFFEN, J.C.A.
PETER OYINKENIMIEMI AFFEN, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling of the High Court of Kaduna State (coram: G. I. Kurada, J.) dated 22/6/21 declining to hear and determine an interpleader summons filed by the 1st Appellant [Hon. Sanusi Mohammed] who claims ownership of a Mercedes Benz car with Reg. No. KT 6070, Chassis No. WDBKJ5KBSDF191338 seized and attached by the 2nd Respondent [Deputy Sheriff, High Court of Justice, Kaduna State] in execution of the judgment entered in favour of the 1st Respondent against the 2nd and 3rd Appellants in Suit No. KDH/KAD/56/2016: Alhaji Salisu Musa Abdullahi & Anor v. Halidu Mohammed Amana.
The judgment (in execution of which the Mercedes Benz car was seized/attached) is the subject of Appeal No. CA/K/64/2021: Alhaji Salisu Musa Abdullahi & Anor v. Halidu Mohammed Amana pending before this Court. The 1st Appellant was neither a party to the suit at the trial Court nor is he a party in the ensuing appeal. Being dissatisfied with the ruling declining to hear the interpleader summons, the Appellants lodged the instant appeal vide a notice of appeal dated 15/7/21 and filed at the Registry of the lower Court same day, raising a sole ground of appeal. The ruling appealed against lies at p. 100-101 of the record of appeal, whilst the notice of appeal is at pp. 102-106 thereof. As enjoined by the rules of this Court, briefs of arguments were filed and duly exchanged by the Appellants and the 1st Respondent. The 2nd Respondent did not file any brief nor was he represented by counsel at the hearing of the appeal on 22/11/21.
A sole issue is distilled in the Appellants’ Brief filed on 20/8/21 (which is settled by J. J. Usman, SAN – as he became during the pendency of this appeal) namely: “Whether the leaned trial Judge was right when His Lordship declined to hear the Interpleader Summons of the 1st Appellant”, which issue was adopted without modification in the 1st Respondent’s Brief filed on 27/9/21(which is settled by S. A. Buhari, Esq.).
It is submitted in the Appellants’ Brief that the lower Court ought to have heard and determined the interpleader summons which falls within its jurisdiction, having regard to the reliefs claimed, calling in aid the oft-cited dictum of Bairamian, FJ in MADUKOLU v NKEMDILIM (1962) 2 NSCC 374 at 379, ADEYEMI v OPEYORI (1976) 9-10 SC 31 at 49, NZEKWE v NNADOZIE (1952) 14 WACA 361 and TUKUR v GOVERNMENT OF GONGOLA STATE [1989] 4 NWLR (PT 117) 517 at 549; that S. 33 of the Sheriffs and Civil Process Law, Cap. 141, Laws of Kaduna State 1991 which is impari materia with S. 34 of the Sheriffs and Civil Process Act and Order 6(1)-(4) of the (Judgment Enforcement) Rules empower the lower Court to hear claims made in respect of property seized or attached by its officers and the Court shall make such order(s) in respect of any such claim as it thinks just. The Appellants maintained that interpleader summons is a distinct proceedings which has no connection with the substantive proceedings, citing A. Y. RIMI VENTURES LTD & ANOR v SAGIR & ORS (2018) LPELR-45100(CA) 1 at 10, TANGENT v OGAMBA (2018) LPELR-44803 at 19-21 and WAWU v ABDULLAHI (2018) LPELR-45382(CA) 1 at 7; that the 1st Appellant has no interest in the substantive proceedings between the 2nd-3rd Appellants and the 1st Respondent, thus the transmission of record of appeal in the substantive matter between them has no adverse effect on the 1st Appellant’s application by way of interpleader summons and the learned trial Judge erred in declining to hear the interpleader summons solely on the ground that the record of appeal has been entered in Appeal No. CA/K/64/2021: Alhaji Salisu Musa Abdullahi & Anor v Halidu Mohammed Amana, in which the 1st Appellant is not a party nor was he a party to the motion for stay of execution filed on the basis of the aforesaid appeal. The further contention of the Appellants is that Order 40 of the Kaduna State High Court (Civil Procedure) Rules, 2007 empower the lower Court to grant the reliefs sought upon the affidavit evidence establishing the fact that the claimant claims no interest than his legitimate right to the attached property, thus the lower Court was imbued with the requisite jurisdiction to hear and determine the interpleader summons, insisting that paragraphs 6–18 of the supporting affidavit and Exhibits B and C annexed thereto clearly show that the 1st Appellant is the owner of the attached Mercedes Benz car to the exclusion of the Judgment Debtors or any other person; that registration of a vehicle in the name of a person constitutes prima facie evidence of ownership and the 1st Appellant not only exhibited the registration documents but all other vehicle particulars including tinted glass permit obtained from the Nigeria Police. They queried rhetorically: Whether the 1st Appellant who is not a party to the suit is liable to have his car attached?; and argued that interpleader summons is proper in the circumstance, citing OBUMSELI & ANOR v UWAKWE (2019) LPELR-46937(SC) 1 at 8–14, [2019] 11 NWLR (PT. 1683) 205 at 218-221 –per Okoro JSC, KALA v POTISKUM & ANOR (1998) LPELR-1648(SC) 1 at 25 – per Iguh, JSC and DALE POWER SYSTEMS PLC v WITT & BUSCH LTD [2007] ALL FWLR (PT. 394) 353 at 365. This Court was urged to allow the appeal and invoke S. 15 of the Court of Appeal Act by considering the substance of the interpleader summons which the trial Court failed to do, placing reliance on ABALAKA v MINISTER OF HEALTH & ORS (2005) LPELR-5572(CA) 1 at 42-43 and HARKA AIR SERVICES (NIGERIA) LIMITED v EMEKA KEAZOR ESQ (2005) LPELR-5693(CA).
In the 1st Respondent’s Brief filed on 27/9/21, it is contended that the Appellants’ submission [to the effect that the lower Court has the requisite jurisdiction to entertain the interpleader summons and/or that learned trial Judge was wrong in declining to hear the Interpleader summons] is totally misconceived; that it is trite law that when an appeal has been lodged at the Court of Appeal, it automatically leaves the trial Court with only one power to exercise in respect of pending applications before it, namely: to transmit such applications to the Court of Appeal. The cases of DR. TUNJI BRAITHWAITE v STANDARD CHARTERED BANK NIG. LTD [2012] 9 NWLR (PT. 1305) 304 at 325, 320-321, AKINYEMI v SOYANWO (2006) 13 NWLR (PT. 998) 496 and IFEZUE v MBADUGHA (1984) 1 SCNLR 427 are referred to. The 1st Respondent maintained that interpleader summons is not one of the applications the lower Court could take and the learned trial Judge was right in declining jurisdiction to hear and determine the 1st Appellant’s interpleader summons. This Court was urged to answer the lone issue for determination in the affirmative and dismiss the appeal for lacking in merit with costs.
A synopsis of the facts leading to this appeal, which are straightforward and by no means complex or convoluted, will illuminate this judgment. The 2nd and 3rd Appellants (as plaintiffs) initiated proceedings at the lower Court against the 1st Respondent in Suit No. KDH/KAD/56/2016: Alhaji Salisu Musa Abdullahi & Anor v. Halidu Mohammed Amana, claiming N86,540,000 as outstanding balance of the cost of different brands of vehicles given to him for sale. The 1st Respondent counter-claimed for the sum of N5m as unpaid commission. The trial Court dismissed the claim and allowed the counter-claim, whereupon the 2nd and 3rd Appellants lodged Appeal No. CA/K/64/2021 as aforesaid. In the interim, the 1st Respondent caused the judgment to be executed. The 2nd Respondent’s officials visited the premises of the 3rd Appellant and seized/attached a Mercedes Benz car with Reg. No. KT 6070, Chassis No. WDBKJ5KBSDF191338. Asserting his ownership of the Mercedes Benz car and insisting that it was merely handed over to the 2nd and 3rd Appellants to sell for him, the 1st Appellant brought before the lower Court an interpleader summons dated 19/2/21 but issued on 23/2/21, to which the 1st Respondent filed a counter affidavit.
When the interpleader summons (and other applications) came up for hearing on 22/6/21, the record of appeal reveals as follows (at pp. 100 – 101):
“22nd June, 2021
1st Plaintiff/Judgment Debtor present
2nd Plaintiff/Judgment Debtor absent
Judgment Creditor/Respondent absent
Isiaka Kabiru, Esq. for Plaintiffs/judgment Debtors
S. A. Buhari, Esq. with Abubakar Abdulkarim for Judgment Creditor/Respondent.
Kabiru: We have three applications one is dated 15th March, 2021. One is an Interpleader proceedings dated 19th February, 2021. One is dated 31st March, 2021. The Judgment Creditors filed a motion to show cause dated 8th March, 2021. I intend to move our motion for extension of time dated 15th March 2021.
Buhari: We have been served but I submit that we cannot continue with this matter because the Applicants have filed an appeal and same has been entered. They have even filed brief of argument and we have been served with same. By the Court of Appeal Rules, once an appeal has been entered, the lower Court is ceased (sic) of jurisdiction and only the Court of Appeal can hear the matter.
Kabiru: The Interpleader summons has nothing to do with this appeal. The claimant is not a party to the appeal. So the lower Court is the proper Court to hear the Interpleader. The CR was to hear the Interpleader.
Court: This file ought not be in this Court, an appeal having been entered and briefs of argument has been filed and served. I am afraid that in the circumstance, I cannot proceed to determine any application in respect of this case. The file should be moved to the Court of Appeal.” (underlining supplied)
The lower Court’s disinclination “to proceed to determine any application in respect of this case” (inclusive of the interpleader summons) is what has given rise to the present appeal. The relevant enquiry therefore is as to whether the lower Court was right in declining to hear and determine the interpleader summons brought by the 1st Appellant, who claims that his Mercedes Benz car was wrongfully attached in satisfaction of the judgment entered in favour of the 1st Respondent in a case in which he was/is neither a party at the lower Court nor in the ensuing appeal.
Interpleader is a proceeding by which a person, who does not himself lay any claim to a property, debt, etc. can protect himself from legal proceedings by calling on the parties to interplead (i.e. claim against each other) so that title thereto may be determined. The procedure is applicable where the goods and/or chattels of a person not named in the writ of fifa are attached and that person comes forward to claim his property. See OBUMSELI v UWAKWE [2019] 11 NWLR (PT. 1683) 205 at 218, 222. The objective of interpleader proceedings is to determine whether property or goods seized or intended to be seized by way of execution belongs to the judgment debtor [and therefore can be so seized] or to the claimant [and therefore cannot be seized]. Either the Sheriff or his deputy, or the claimant, may initiate an interpleader proceedings for the Judge to summarily determine the question at issue and make an order accordingly on such terms as may be just. The Sheriff or his deputy who initiates an interpleader proceedings has no personal stake in the matter: he is merely required to present the summons before the Court, whilst the true parties are the claimant [who is asserting title to the attached property] and the judgment creditor at whose instance the property in dispute was attached. Thus, the claimant is the proper plaintiff, whilst the judgment creditor is the proper defendant. Since the burden of proof generally lies on the party asserting the positive and it is he who would fail if no evidence were adduced on either side, the onus lies on the claimant to establish his title to the property in dispute, or where his claim is not absolute title, he must prove his precise interest in the property alleged to have been wrongly attached. See BARCLAYS BANK DCO v J. A. BADERINWA, IN RE L.E.D.B. (1962) ALL NLR 731 at 734, N.A.B. v ABDULLAHI [2000] 6 NWLR (PT. 662) 549, GABRIEL OLATUNDE v OBAFEMI AWOLOWO UNIVERSITY & ANOR (1998) LPELR–2575 (SC) and OBUMSELI v UWAKWE supra. It would seem, however, that where the claimant was in possession of the property in issue at the time of its attachment, it would seem that the judgment creditor shall, in that case, be deemed a plaintiff and the burden of proof shall reverse accordingly. See KALA v POTISKUM (1998) 1-2 SC 132, (1998) LPELR-1648(SC) 1 at 25 (citing RABIU JINADU v BABAOYE (1966) 2 All N.L.R. 241 –per Taylor, CJ).
The general rule is that an appeal does not operate as stay of execution or proceedings. See OGUNREMI v DADA (1962) 2 SCNLR 417. In practice however, once an appeal has been entered, the res in the appeal automatically passes into the custody of the appellate Court and “[i]t only stands to reason that two masters cannot steer the same boat. The High Court must yield to the Court of Appeal whenever an appeal against a trial Court’s decision has been entered at the Court of Appeal. This is because, being a final decision of the High Court, there is nothing left for it to decide. Immediately the Court of Appeal receives the record of proceedings, everything must be brought to the jurisdiction of the higher Court. The same principle holds good for the relationship between this Court and the Supreme Court so that immediately a final appeal or even an interlocutory appeal is entered there, the Court of Appeal, ceases to have jurisdiction on the matter. Really, there should not have been any argument about the old age tradition now codified in the rules of Court”: IKPEAZU v OGAH (2016) LPELR-40845(CA) 1 at 22-23 –per Ogunwumiju JCA (now JSC). See also ABINA v TIKA TORE PRESS (1968) 1 ALL NLR 210, (1968) LPELR-25528(SC), OGUNREMI v DADA (1962) 2 SCNLR 417, EZEOKAFOR v EZEILO [1999] 9 NWLR (PT. 619) 513 and DINGYADI & ANOR v INEC & ORS (2011) LPELR-950(SC) 1 at 35-36 –per Adekeye, JSC. Thus, once a lower Court becomes aware of, or its attention is adverted to, the fact that an appeal against its decision has been entered in a higher Court, the lower Court would usually defer to the higher Court by refraining from continuing with proceedings or otherwise entertaining and determining any pending application that has a bearing on the appeal until and unless the appeal is disposed of one way or another.
However, because foisting a stay of proceedings on a lower Court merely on the ground that an appeal has been entered in a higher Court is fraught with the potential of the appeal process being abused or deployed to serve ends other than the dictates of justice, a fine but necessary distinction is often drawn between final and interlocutory appeals; and it would seem that in respect of interlocutory appeals, the question of whether or not the lower Court ought to stay its proceedings is dictated by the demands of justice in any particular case. In JIMI ODUBA v C.V. SCHEEPV AARRTONDERNEMING HOUTMANGRACHT & ANOR [1997] 6 NWLR (PT. 508) 185 at 205–206 (an appeal revolving around the issue of security for costs ordered by the trial Court), the Supreme Court (per Belgore JSC, as he then was) opined thus: “I agree with my learned brother, Iguh JSC that the main achievement of this matter travelling up to this Court was to frustrate the expeditious trial of the substantive case that has been lying dormant for almost nine years due to stay of proceedings the appellant procured. It is true that out of respect for hierarchy of Courts, once an interlocutory appeal is entered, the lower Court stays proceedings in many cases voluntarily. But whether the stay is voluntary by the trial Court or on it is being moved so to do, regard must be given to the overriding principle of justice of the case. If the stay of proceedings, by the nature of the case, will tend to stifle the case and cause great inconvenience and/or great loss to the person who wishes to proceed with the hearing, the trial Court should not stay the proceedings unless ordered by a Superior Court.” Not dissimilarly, this Court (per Yahaya JCA) held in IKPEAZU v OGAH supra at p. 23 that: “Once an appeal is entered in this Court, all Courts below should hands off. When a Court makes a ruling, in the course of hearing a substantive suit, a party dissatisfied, may appeal it. The record in respect of the ruling is then transmitted to the Court of Appeal for determination. Once that is done, the Court will cease to have jurisdiction in respect of the subject of the ruling, but would have the jurisdiction to continue with the substantive suit, as the record of it, has not been transmitted to the Court of Appeal.”
By Order 4 Rules 10 and 11 (1) of the Court of Appeal Rules 2021, an appeal is entered when the record has been received in the Registry of this Court within the time prescribed by the Rules or within such other extended time as ordered by the Court; and upon entry of an appeal and until it has finally been disposed of, the Court shall be seised of the whole proceedings as between the parties thereto and every application therein shall be made to the Court and not to the Court below except otherwise provided in the Rules. It was in apparent obedience to the provisions of the Court of Appeal Rules that the lower Court declined to hear the interpleader summons, without saying so expressly. But the lower Court clearly lost sight of, and did not factor in, the provisions of Order 4 Rule 11(2) to the following effect: “Nothing in Sub-rule (1) above shall be construed as requiring the lower Court to order stay of proceedings, or adjourn sine die, proceedings in relation to matters or proceedings in the lower Court that are not impacted by or to which the appeal entered in the Court of Appeal does not relate”. The generality of Order 4 Rule 11(1) is attenuated by Sub-rule 2, and the lower Court could validly entertain matters or proceedings not impacted by the appeal notwithstanding the transmission of records to the Court of Appeal and entry of appeal thereat. I take the considered view that interpleader proceedings belong in the category of matters or proceedings not impacted by an appeal against the judgment, and the lower Court retains unimpeded jurisdiction to summarily determine interpleader proceedings.
The point to underscore is that interpleader is a separate and distinct proceedings from the case that generated the judgment, in execution of which the goods/chattels subject matter of interpleader proceedings are seized/attached by the Sheriff or his deputy. It is brought by a person whose property is wrongly attached; a person who is not a party to the proceedings leading to the execution, albeit wrong execution done against his property. The claimant in interpleader proceedings is often a third party who has no connection with the substantive suit that gave rise to the judgment being executed or sought to be executed in furtherance of which goods or chattels are alleged to have been wrongly seized or attached. A claimant in interpleader proceedings merely craves for an opportunity to demonstrate that the goods seized or attached in execution of the judgment do not belong to the judgment debtor but to him. He is neither the judgment debtor nor the judgment creditor, but a complete stranger, as it were, to the substantive proceedings, who has no stake at all in any ensuing appeal against the judgment. Thus, the fact of entry of an appeal against the judgment does not preclude the lower Court from entertaining interpleader proceedings. Crucially, the interpleader application and the documents put forward by the claimant in support of a claimant’s assertion of ownership and the counter-affidavit presented by the judgment creditor in opposition thereto are not part of the documents transmitted to the Court of Appeal for the hearing and determination of the appeal [see IKPEAZU v OGAH supra at 23] , and a trial Court is not stripped of its jurisdiction to summarily dispose of interpleader proceedings before it. This being so, the lower Court was patently in error when it declined to hear and determine the 1st Appellant’s interpleader summons which had absolutely nothing to do with the pending appeal. This appeal ought therefore to be allowed.
The Appellants have prayed this Court to set aside the decision of the lower Court dated 22/6/21 and grant the reliefs sought by the 1st Appellant at the Court below, placing reliance on the cases of ABALAKA v MINISTER OF HEALTH & ORS (2005) LPELR-5572(CA) and HARKA AIR SERVICES (NIGERIA) LIMITED v EMEKA KEAZOR, ESQ. (2005) LPELR-5693(CA).
There is no gainsaying that S. 15, Court of Appeal Act, 1976 and Order 4 Rule 1, Court of Appeal Rules 2021 invest this Court with wide general powers to exercise full and complete jurisdiction over the entire proceedings on appeal as if the proceedings had been instituted before it as a Court of first instance.
However, upon insightful and careful examination of the initial and further affidavits in support of the interpleader summons on the one hand, and the ‘counter affidavit to interpleader summons’ on the other hand (as contained in the Record), it does not seem to me politic to exercise those general powers in the instant appeal. I reckon that the lower Court stands in a more vantage position to hear and determine the interpleader summons, and possibly resolve conflicting averments as to whether or not the vehicle registration particulars upon which the 1st Appellant has relied in asserting ownership of the Mercedes Bench car are “concocted to deny the Judgment Creditor/Respondent the fruits of his judgment” as there was no registration number on the vehicle at the point of seizure/attachment (as the 1st Respondent contends), or the registration particulars and tinted glass permit were validly issued by the Kaduna State Internal Revenue Service and the Nigeria Police respectively (as the 1st Appellant asserts). I cannot rule out the possibility that resolution of these conflicts may require calling of oral evidence, which remains the exclusive province and forte of the trial Court.
I accordingly record an order allowing this appeal. The decision of the lower Court declining to hear the interpleader summons will be and is hereby set aside. The Honourable the Chief Judge of Kaduna State shall reassign the interpleader summons dated 19/2/21 but issued on 23/2/21 to another Judge of the High Court of Kaduna State for hearing on the merits. There shall be no order as to costs.
FATIMA OMORO AKINBAMI, J.C.A.: I have read in draft, the lead judgment of my learned brother, Peter Oyinkenimiemi Affen, JCA, where the facts and issues in contention have been set out.
I am in agreement with the reasoning and conclusion and adopt the judgment as mine. I have nothing extra to add.
ABUBAKAR MAHMUD TALBA, J.C.A.: I had the advantage of reading in draft, the lead judgment of my learned brother PETER O. AFFEN, JCA, and I agree with his reasoning and conclusions. I only wish to emphasis the fact that by Order 4 Rule 11(2) of the Court of Appeal Rules 2021, the lower Court is vested with the jurisdiction to entertain the interpleader proceedings. The interpleader proceeding is a separate and distinct proceedings from the main trial which culminated to the judgment appealed against.
Accordingly, the appeal is meritorious and it is allowed.
Appearances:
J. J. Usman, SAN, with him, Emereole, Esq. and T. M. Emereonye, Esq. For Appellant(s)
S. A. Buhari, Esq. – for 1st Respondent
2nd Respondent absent and unrepresented by counsel For Respondent(s)
