Chief V. C. Obumseli & Anor V. Chinyelugo P. Uwakwe (2019)

LAWGLOBAL HUB Lead Judgment Report

JOHN INYANG OKORO, J.S.C.

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:-