YUSUF v. OGHAE & ANOR
(2022)LCN/16651(CA)
In The Court Of Appeal
(KADUNA JUDICIAL DIVISION)
On Friday, July 01, 2022
CA/K/97/2020
Before Our Lordships:
Mojeed Adekunle Owoade Justice of the Court of Appeal
Amina Audi Wambai Justice of the Court of Appeal
Bitrus Gyarazama Sanga Justice of the Court of Appeal
Between
ALH. GARBA YUSUF APPELANT(S)
And
1. THEOPHILUS OGHAE 2. JOHN IKHIBOYA RESPONDENT(S)
RATIO
THE DEFINITION OF EVIDENCE
Evidence is any species of proof, or probative matter, legally presented at the trial of an issue, by the act of the parties and through the medium of witnesses, records, documents, exhibits, concrete objects etc. for the purpose of inducing belief in the minds of the Court or jury as to their contention. See Black’s Law Dictionary 6th Edition P. 555.
In other words, evidence is the demonstration of a fact, it signifies that which demonstrates, makes clear, or ascertains the truth of the very fact or point in issue, either on the one side or the other. PER OWOADE, J.C.A
MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision/ruling of the Kaduna State High Court delivered by Honourable Justice D.S. Wyom on the 11TH DAY OF January 2018.
The Appellant as claimant brought interpleader summons against Theophilus Oghae, Judgment Creditor as 1st Respondent, John Ikhiboya Judgment Debtor as 2nd Respondent and Deputy Sheriff, High Court of Justice, Kaduna State as 3rd Respondent.
The application was brought sequel to the execution of the Judgment/Order of the High Court, Kaduna State in Suit No. KDH/KAD/231/2016 – Theophilus Oghae vs. John Ikhiboya in respect of Filling Station opposite Ministry of Education (Inspectorate Division, Zonkwa, Zangon Kataf, LGA, Kaduna State.
The application seeks for the following reliefs:
“(1) An Order of this Court setting aside/removing the attachment of the Filling Station opposite Ministry of Education (Inspectorate Division, Zonkwa, Zangon Kataf LGA, Kaduna State while executing the process of the Court.
(2) An Order directing the 3rd Respondent – the Deputy Sheriff to unconditionally release the said Filling Station opposite Ministry of Education (Inspectorate Division, Zonkwa, Zangon Kataf LGA, Kaduna State to the Claimant who is the rightful owner of same forthwith.
(3) Such order(s) as this Court may deem fit to make in the circumstance.”
In a considered ruling, the learned trial Judge held as follows, in dismissing the Appellant’s claimant’s application:
“In the instant application, the claimant exhibited a document marked exhibit ‘A’. A look at his exhibit ‘A’ will clearly show that same is not a document of title, neither does it show possession. It merely shows petroleum haulage which from an indepth analysis could only mean the claimant is a transporter. Exhibit ‘A’ dated 3/6/1998 and it means it was issued close to 20 years ago. The transaction between the Judgment Creditor/1st Respondent and the Judgment Debtor/2nd Respondent was in 2012, when the Judgment Debtor claimed the property as his. See exhibit ‘D1’ dated 17/12/2012. The claimant has not shown any evidence of the reversal of the property to him from the Judgment Debtor/2nd Respondent. The claimant, apart from not showing any evidence of title to property attached, he had equally not shown any evidence of leave to the one Sunday Odumu or any other person. What is more, the claimant has not shown that he is/was in possession at the time of attachment to warrant a shift of the burden of proof to the Judgment Creditor/1st Respondent.
Taking all the above into consideration, I am left with no other option than to dismiss the claimant’s application.”
Dissatisfied with the decision/ruling, the Appellant/Applicant filed a Notice of Appeal containing three (3) grounds of appeal in this Court on 13-02-2018.
The relevant briefs of Argument are:
(i) Appellant’s Brief of Argument which was filed on 10-3-2021 but deemed filed on 14-10-2021. It is settled by Garba U. Shehu Esq.
(ii) 1st Respondent’s Brief of Argument which was filed on 12-11-2021. It is settled by E.C. Aneme Esq.
Learned counsel for the Appellant nominated two (2) issues for determination of the appeal. They are:
“(a) Whether by the affidavit evidence and documents annexed in support of the interpleader summons, the lower Court was right when it dismissed the summons on the ground that the Appellant did not show evidence of possession of the Filling Station (Ground 1 & 3).
(b) Whether by the affidavit evidence before it the lower Court was right when it held that the Appellant has not shown any evidence of reversion or lease of the Filling Station (Ground 2).”
Learned counsel for the 1st Respondent also formulated two (2) issues for determination of the appeal. They are:
“1. WHETHER the Appellant proved ownership of the Mobil filling station attached and sold by the lower Court.
2. WHETHER the Appellant was in possession of the filling station at the time of attachment and sale of the immovable.”
On issue 1, learned counsel for the Appellant submitted that from Exhibit ‘A’ annexed to the affidavit in support of the interpleader summons the Appellant has shown that he is the owner of the filling station and that he entered into a Dealership Agreement with Mobil Oil Nig. Plc.
That the Appellant stated that he is a registered Marketer/Dealer with Mobil Oil Nigeria Plc and was registered with his filling station in Zonkwa and has been in operation of the station until when the filling station was vandalized during the 2011 Post Election violence and he left it in the vandalized position.
He submitted further, that in his particulars of claim, the Appellant stated that the title documents of the filling station have been with Mobil Oil Nig. Plc a company the filling station was registered with.
He reiterated that by the deposition contained in the affidavit in support of the Appellant’s interpleader summons particularly at pages 70–74 of the records, the Appellant has proved to the Court he owns the filling station situate at Zonkwa, Zango Kataf LGA, Kaduna and has been in possession of same as at the time of the attachment and not the 2nd Respondent. He referred to the case of W.A.C Ltd vs. Haruna (2008) All FWLR (Pt. 416) P. 1947 at P. 1955 where the Court stated thus:
“Accordingly, the burden of proof again as a general rule is on the Claimant as the Plaintiff in the proceedings. The onus lies on him to either establish his title to the property in dispute or where his claim is not absolute title; he must prove the person’s interest or title he claimed. Where however 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. In that case, the burden shall be in the judgment Creditor to establish his claim. See WAWU V. ABDULLAHI (2018) LPELR-45382 (CA).”
He concluded, re-stating the trite position of the law that where a party to an Interpleader proved to the Court that he has a good title and has been in possession of the attached property, the Court has no option than to grant his application.
Learned counsel for the Respondent in arguing issue 1, also joined the Appellant in stating the position of the law as to burden of proof in interpleader summons. That generally in Interpleader proceedings, the onus is on the claimant who asserts that he owns or has an interest in the property upon which execution was levied to prove his ownership by cogent and credible evidence. However, that where the claimant is in possession of the property in issue at the time of attachment, the Judgment-Creditor shall be deemed a Plaintiff and that burden of proof shall be upon him. He referred to this in the cases of Ramada Int. & Pham Ltd vs. Ezeoreu (2016) 14 NWLR (Pt. 1533) P. 339, Kala vs. Potiskum (1998) 3 NWLR (Pt. 540) P.1, Olatunde vs. O.A.U (1998) 5 NWLR (Pt. 549) P. 178.
Applying the above principles of law, learned counsel for the Respondent submitted that the Appellant did not prove his ownership of the filling station at the lower Court, necessitating the Court to dismiss the Interpleader.
He reasoned that Exhibit ‘A’ annexed to the Appellant’s interpleader (P.79 of the record) is not a document of title neither does it show possession. That Exhibit ‘A’ is merely evidence of Petroleum haulage, which could only mean that the Appellant is a transporter.
He added that the learned trial Judge aptly observed at page 164 of the records that Exhibit ‘A’ was dated 3/6/98 long before the contract between the 1st and 2nd Respondent which was in December, 2012.
He further submitted that the Appellant did not show any evidence of lease either to the 2nd Respondent or Sunday Odumu. What is more, said counsel, the Appellant did not show he was in possession at the time of detachment. In fact, the Appellant said that one Sunday Odumu was running the filling station. Moreover, said counsel, the person said to be in possession did not sign a caveat in the writ of Fifa to show the circumstances he came into the property or he acquired possession.
He added that as a matter of fact, the 2nd Respondent (the defendant judgment debtor in the lower Court) was emphatic that the property attached was his own ab initio when he entered the contract with the 1st Respondent (page 20 Records) where in the loan agreement the 2nd Respondent signed that the money he borrowed was “to support petroleum products distribution business at his Mobil Filling Station, opposite Ministry of Education, (Inspectorate Division) Zonkwa, Zango Kataf LGA, Kaduna State.”
Furthermore, said counsel, before the 1st Respondent proceeded to Court a letter of demand given to the 2nd Respondent did mention the said filling station as the 2nd Respondent and the 2nd Respondent never refuted the claim. (Pp. 21, 85 and 87 of the records).
That even when judgment was obtained, the notice of same was brought to owner/operator of the filling station vide a letter dated 15/7/16 by the 1st Respondent’s solicitors, but the owner/operator never responded nor reacted (P.89 of the records).
He urged us to hold that the Appellant did not prove ownership of the immovable attached, and find in favour of the 1st Respondent on this issue.
In deciding Appellant’s issue 1, it is clear that the Appellant’s affidavit in support of the Interpleader’s summons at best deposed to facts that are not supported or proved by evidence. For example, paragraphs 6, 8, 9, 10 of the Appellant’s Affidavit in support at page 71 of the records read thus:
“6. That I am a registered Marketer/Dealer with Mobil Oil Nigeria Plc and was registered as such with the Filling Station in Zonkwa which belongs to me and which operate. Copy of my Data Advice is annexed as ‘A’.
8. That the Judgment Debtor approached me and after extensive negotiations, we agreed that he will repair and renovate the Filling Station, use my Mobil Oil Nigeria Plc license to run the Filling Station for 4 years to recoup the cost spent on the repairs and renovations and hand over my filling Station to me which he did in October, 2016.
9. That in view of my health condition it is impossible to run the Filling Station in person and I entered into a lease with one Mr. Sunday Odumu who is currently running the Filling Station.
10. That the Lease Agreement I had with the Judgment Debtor had expired in October, 2016 and he has no any claim to ownership or right over the Filling Station opposite Ministry of Education (Inspectorate Division) Zonkwa Zangon Kataf LGA Kaduna State.
Meanwhile, as rightly observed by the learned trial Judge, Exhibit ‘A’ is a Data Advice and not evidence of ownership of the Filling Station. Also, paragraphs 8, 9 and 10 make mention of lease agreements but these facts were not substantiated by any evidence not to talk of cogent and credible evidence as required by law.
The learned trial Judge was right to have held that the Appellant did not prove ownership of the Mobil Filling Station attached and sold by order of Court.
Issue 1 is resolved against the Appellant.
On issue 2, learned counsel for the Appellant submitted that the Appellant has shown ample evidence of the lease of his Filling Station to the 2nd Respondent and the lease was for a term of 4 years to enable the 2nd Respondent recover his investment incurred in repairs when it was vandalized during the post–election violence of 2011.
That the Appellant has shown in the affidavit evidence that after the expiration of the period of 4 years the 2nd Respondent handed over the Filling Station to the Appellant in October, 2016.
He submitted that the Appellant released the Filling Station to one Mr. Sunday Odumu who was running the Filling Station from 2016 up to the time of attachment in August, 2017.
He submitted that the Appellant’s supporting affidavit deposed that after the expiration of the lease between the Appellant and the 2nd Respondent, there was a reversion upon which he leased same to Mr. Sunday Odumu, who was running the Filling Station as at the time of the attachment.
Learned counsel for the Respondent adopted his argument on issue 1, that the Appellant was not in possession at the time the property was attached. Consequently, said counsel, the burden does not shift to the 1st Respondent. That the learned trial Judge so found on page 164 of the records. He submitted that the Appellant has not shown any evidence of lease to anybody, not in the least to Mr. Sunday Odumu who did not sign any caveat in the writ of Fifa to show how he came into the property as required by law. Also, that Mr. Sunday Odumu received the 1st Respondent’s demand Notice and Notice of judgment contained on pages 87–90 of the records and never said he was the owner of the Filling Station.
He concluded that the Appellant has not shown any evidence of ownership of the Filling Station, neither did he show he was in possession at the time of attachment to be able to shift the burden of proof on the 1st Respondent.
I adopt my decision on the resolution of issue 1 in the resolution of Appellant’s issue 2.
Perhaps one should say for the umpteenth time that the Appellant’s affidavit in support of the application for interpleader was replete with mere assertion of facts that are not supported by evidence whatsoever.
Evidence is any species of proof, or probative matter, legally presented at the trial of an issue, by the act of the parties and through the medium of witnesses, records, documents, exhibits, concrete objects etc. for the purpose of inducing belief in the minds of the Court or jury as to their contention. See Black’s Law Dictionary 6th Edition P. 555.
In other words, evidence is the demonstration of a fact, it signifies that which demonstrates, makes clear, or ascertains the truth of the very fact or point in issue, either on the one side or the other.
In the instant case, the Appellant’s affidavit in support was/is bereft of evidence either to show that he was/is the owner of the attached property or to show that he was in possession of the same.
The learned trial Judge was right in all the circumstances to have held that the Appellant claimant has not shown that he is/was in possession at the time of attachment to warrant a shift of the burden of proof to the judgment Creditor Respondent.
Issue 2 is resolved against the Appellant.
Having resoled the two (2) issues in this appeal against the Appellant, the appeal lacks merit and it is accordingly dismissed.
N50,000 costs is awarded against the Appellant in favour of the 1st Respondent only.
AMINA AUDI WAMBAI, J.C.A.: I read before now, the lead judgment of my learned brother, Mojeed A. Owoade, JCA I agree with his reasoning and conclusion that there is no merit in this appeal. Same as mine in dismissing this appeal. I abide by the consequential order to cost.
BITRUS GYARAZAMA SANGA, J.C.A.: I have read a draft of the judgment just delivered by my learned brother M. A. Owoade, PJCA. I agree with and adopt as mine the finding and conclusion reached in the lead judgment that this appeal lacks merit. I join my brother in dismissing this appeal and affirm the decision of the lower Court delivered on 11/1/2018. I also abide by the order as to cost.
Appearances:
G.U. SHEHU, ESQ. For Appellant(s)
E.C. ANEME, ESQ. – for 1st Respondent For Respondent(s)
