ADEKUNLE V DADA & 5 ORS

IN THE HIGH COURT OF LAGOS STATE
IN THE IKE3A JUDICIAL DIVISION
HOLDEN AT COURT 31
BEFORE HON. JUSTICE M. O. OBADINA (MRS.)
TODAY MONDAY THE 9TH DAY OF FEBRUARY 2009

SUITNO: ID/3506/1996

BETWEEN:

CHIEF OLUSAN30 ADEKUNLE CLAIMANT/RESPONDENT

AND

1. ALHAJA SALIMOTU DADA
2. ISIAKA YUSUF OGUNLEYE - JUDGMENTCREDITORS/APPLICANTS
3. FATAI YUSUF OGUNLEYE
4. JIMOH YUSUF OGUNLEYE
5. LASISI YUSUF OGUNLEYE
6. ALHAJI IBRAHIM ABDULLAH

AND

1. JACOB ADELOLA JUDGMENT DEBTORS/RESPONDENTS


2. MADAM ADIJATU OMO-OBA

RULING

The Judgment Creditors/Applicants Motion on Notice is dated 18th September 2008. It is brought pursuant to Order 39 Rule 1 of the High Court of Lagos State Civil Procedure Rules 2004 and under the inherent jurisdiction of this court.

The Applicants are praying for:
"An order discontinuing and or striking out this interpleader summons on the ground that this court has no jurisdiction to entertain same"
The grounds upon which this application is brought are:-

1, That the proceedings by way of Interpleader Summons under Order VI of the Judgment (Enforcement) Rules presuppose and or assume that the property to which the proceedings relate is still in the custody of the bailiff and or Deputy Sheriff.

2. The property to which this proceedings relate is no longer in the custody of the bailiff or the Deputy Sheriff.

3. Interpleader summons proceedings in the circumstance is inappropriate and violently violates the rule in Madukolu V Nkemdilim (1962) 2 SCNLR 341.

In support of the application is an 8-paragraph affidavit sworn to by Sikiru Daramola litigation clerk in the Firm of Messrs Bisi Adegunie & Co. Solicitors to the Judgment Creditors/Applicants.

In paragraphs 3 " 6/ the deponent averred as follows:"

"3. That judgment was delivered in this suit in respect of the properties known as Nos 2 and 4 Ogedemgbe Street Agege in favour of the Judgment Creditors/Applicants on 2th February 2003.

4. That execution was levied on the premises in January 2006 and possession of the premises was handed over to the Judgment Creditors/Applicants

5. That attached herewith and marked Exhibit A is a copy of Form O1 or Certificate of Execution of Warrant of Possession issued to the Judgment Creditors/Applicants
by the Deputy Sheriff of the Honourable Court.

6. That Lukman Qgunsetan of counsel informed me at my office on Tuesday 16th September 2008 at about 12 noon as follows and I verily believe:

(a) That the Deputy Sheriff of this Honourable Court delivered possession of the property to the Judgment Creditors/Applicants in January 2006.

(b) That the Deputy Sheriff of this Honourable Court no longer has any power to issue interpleader summons in respect of the said property."

Attached as exhibit to this affidavit is a photocopy of "Form 0" dated 3rd February 2006,

Applicants counsel Lukman Ogunsetan filed a written address dated 18th September 2008. He formulated only one issue for determination to wit:

"Whether in the circumstances, the claimants' claim can be ventilated by way of interpleader summons"

He argued that interpleader proceedings is a suit to determine a right to property held by a disinterested third party (called a stakeholder) who is in doubt about ownership and who therefore deposits the property with the court to permit interested parties to
litigate ownership. He referred to Blacks Law Dictionary 8th Edition page 836.

He submitted that a necessary feature of the interpleader proceedings is that the property the subject matter of the proceedings must be in the possession of a disinterested party.
Where, as in this case, the proceedings is a Sheriffs Interpleader, then the property must still be in the custody of the Deputy Sheriff.

In this case, the Deputy Sheriff levied execution in January 2006 and issued Form "O".1 The issuance of Form "0" by the Deputy Sheriff renders him functus officio as far as the property is concerned. He is therefore incapable of issuing interpleader summons for the purpose of determining the issue of ownership between the judgment creditors and any rival claimant.

He relied on the locus classicus case of Madukolu v Nkemdilim (1962) 2 SCNLR 341 and urged the court to strike out the Interpleader Summons.

The claimant/respondent opposed the application and filed a 4-paragraph counter affidavit deposed to by one Benson Mark process clerk in the chambers of S, A. Lawal & Co claimant's counsel.
In paragraphs 2 and 3, the deponent averred thus:-

"2. That I have read the affidavit of Sikiru Darambia sworn to on 19th September 2008 and paragraphs 4/ 5 & 6 of the affidavit are denied.

3. That Adewale Lawai/ counsel to the claimant informs me and I verily believe as follows:-

(a) That Mr. Jide Craig then a Bailiff of court informed him and he verily believed him that he served the Notice of Claim to attach property (Form 42) on Messrs Bisi
Adegunie & Co on 31/1/2008"

Respondent counsel S. A. Lawal filed a written address dated 30th October 2008. He formulated only one issue for determination thus:-

"Whether Exhibit A Certificate of Warrant of Possession as exhibited is enough to prevent the court from exercising jurisdiction in the interpleader proceedings."

Learned counsel argued that Exhibit A is at variance with paragraph 6(a) of the affidavit in support which states that possession was delivered in January 2006 while Exhibit A is dated 3rd February 2006.

He urged the court-to reject this deposition. He also urged the court to take notice of the alteration on the year shown in Exhibit A. Furthermore, Exhibit A being a public document within the meaning of Section 109 of the Evidence Act ought to have been
certified to, be admissible. He relied on the case of Yero V LIBN Ltd (2005) 5 NWLR (Pt. 657) 470.
Learned counsel urged the court to consider its records and take notice of the following facts,
(a) Letter dated 27/1/2006 informing the Deputy Sheriff of the interest of the claimant in the attached property known as 4/ Ogedemgbe Street Agege Lagos.
(b) Notice of Claim to attached property (Form 42) was issued and dated 30th January 2006 by the Registrar of the High Court.

(c) That Form 42 was served on Messrs Bisi Adegunie & Co Solicitors to the Applicants on 31/1/2006.

He argued that there is nothing on record to show that possession of the property was handed over to the Applicants on or before 31/1/2006 when Form 42 was served. That even Exhibit A states that possession was given on 3rd February 2006.

He urged the court to hold that at all material times, the claimant was properly before the court and that this court has jurisdiction to entertain the interpleader summons pursuant to the Sheriff and Civil Process Act and under its inherent jurisdiction.

In his oral reply, Applicants counsel argued that the only opposition of the claimant is the non-certification of Exhibit A. He referred to the following cases - Abacha V Fawehinmi (2000) 6 NWLR (Pt. 660) 228, Adejumo & Ors V Military Governor
Lagos State (1970) 1 All NLR 183 at 187, Oduya V Nzeogwu (1996) 1 NWLR (Pt. 426) 713 at 722 on objection to exhibit attached to an affidavit. He urged the court to accept the document as the practice is that photocopy of documents is often attached in interlocutory applications.

In determining this application/ the court will make use of documents in its file not tendered as exhibits. For the power of the court to do this/ I refer to the case of NASCO Management Services Ltd V A. N. Amaku Transport Ltd (2003) 2 NWLR
(Pt. 804) 290 at 334-335.

Interpleader Summons are of two types, the Sheriffs Interpleader and the Stakeholders Interpleader. In the Sheriffs interpleader, the proceedings are initiated by the Sheriff/ where a third party claims that the property on which execution is levied or about to be levied belongs to him 'and not to the judgment debtor. Interpleaders other than Sheriffs Interpleaders are known as Stakeholders Interpleaders. See Civil Procedure in Nigeria 2nd Edition by Fidelis Nwadialo Page 1124.

Section 34 of the Sheriffs and Civil Process Act Cap 407 Laws of the Federation 1990 deals with interpleader by Sheriff.

Section 34(1) provides:-

"(l) If a claim is made to or in respect of any property attached in execution under process of a court, or in respect of the proceeds or value thereof, the registrar may, upon the application of the Sheriff, as well before or after any action brought against him, issue a summons calling before the court at whose instance the process is issued and the party making the claim"

It is clear from this provision that the summons will issue where the property has been attached not where possession has been taken. It is at the stage of issuance of process to levy execution that an interpleader summons can be issued by the Sheriff.

The Claimant/Respondent did not dispute this. He is contending that there was no execution because the document tendered to prove that possession was taken i.e Exhibit A is spurious.

By virtue of Section 97(2) (c) of the Evidence Act, the only acceptable secondary evidence of a public document is a certified true copy of the document and none other. The objective of Section 97(2) (c) is to ensure the authenticity of the document vis- a-viz the original, and the need for the preservation of public documents.

In Araka V Egbue (2003) 17 NWLR (2003) 17 NWLR (Pt. 848) 1 at 20 - 21, his Lordship Niki Tobi JSC made a profound statement on the rationale for certification.

He said:-
"In this age of sophisticated technology, photo tricks are the order of the day and secondary evidence produced in the context of Section 97 (2) (a) could be tutored and therefore not authentic. Photo tricks could be applied in the process
of copying the original document with the result that the copy, which is secondary evidence, does not completely and totally reflect the original and therefore not a carbon copy of the original."

I have read the cases cited by Applicants' counsel in support of his submission that courts have held that you don't need to tender certified true copy of public documents in all cases.
In Abacha V Fawehinmi (supra) at page 330 - 332 the Supreme Court held that the Detention Order in that case was a public document and the certified true copy of same should have been tendered. In Adejumo V Military Governor Lagos State (supra), the Supreme Court held at page 187 thus:

"...is it proper to object to a paragraph of an affidavit, or a document exhibited in an affidavit before the substantive action is heard or before it is known to what use the document will be put? We think not. In our view, objection should be taken when all the facts are put before the court and not at the preliminary stage..."

From this pronouncement, it is clear that objection can be taken to a document when the use for which the document is tendered is clear. If it is to prove a material point which can decide an application one way. or another, then the exhibit should be certified.

I am persuaded that this is the correct position of the law and I am emboldened in my view by the pronouncement of His Lordship Oguntade JCA (as he then was) in Fawehinmi V Inspector General of Police (2000) 7 NWLR (Pt. 665) 481 at 525

where His Lordship said:-
'The lower court also said that the stage at which the objection to the admissibility of Exhibits GF1, GF2 and GF3 was raised was premature. The lower court would rather
the objection was raised at the hearing of the substantive suit.

......It seems to me that where the exhibit concerned is the primary evidence by which it is sought to prove the truth of
a particular deposition in an affidavit, the documentary exhibit must satisfy the requirements of Section 97 of the Evidence Act. Otherwise it should be ignored or
discountenanced"

I am not aware of any appeal to the Supreme Court against this finding of the Court of Appeal and on the basis of the principles of stare decisis, I am bound by it.

Exhibit A is the only document by which it is sought to prove the possession of the property in dispute after the execution. I have examined the court's record. I am unable to find any copy of Exhibit A in the court's file. Exhibit A was also altered. No explanation was given for the alteration of the date on the document. I agree with claimant counsel- that Exhibit A is spurious. I discountenance it totally.

In the absence of Exhibit W, can this application still succeed? Like I said earlier/1 am empowered to examine the court's record and to make use of documents therein.

On the 25th of April 2006, this court granted claimants application for substituted service of the interpleader summons and other processes on the judgment creditors. . The court ordered that proof of service should include photographs showing the front view of the premises where the processes were pasted.

The court processes were pasted according to the affidavit of service dated 27th June 2006 at No 4 Ogedengbe Street, Agege, Lagos the property in dispute. The photograph attached show the building with an inscription on the wall stating "ID/3506/96 possession taken today 24/1/2006 by court order"

Affidavit of service of a Hearing Notice dated 1st November 2006 also show the inscription on the building. It is clear to me therefore that the Deputy Sheriff has already levied execution and taken possession of the property in dispute. Interpleader summons proceeding is therefore not available to the Claimant at this stage to claim the property. He has to come to court by a writ of summons.
In the final analysis, this application succeeds. This court has no Jurisdiction to continue with this interpleader proceedings. The Interpleader summons is accordingly struck out.


HON. JUSTICE M. O. OBADINA (MRS.)
JUDGE
9/2/2009.

Counsel: A. Lawal for the Claimant/Respondent
Lukman Ogunsetan for the Judgment Creditors/Applicants-