Case stated by the Supreme
Court.
Interpleader- Possessory interest-Order
45 rule
25
procedure.
The case stated for the
consideration, of the Court of
Appeal was:
Plaintiff having
proved possession in his own
right, is it open to the
defendant, in a claim for the
release of land attached under
a writ of Fi Fa, to prove that
the judgment debtor could succeed in an
action for
recovery of possession all
against
him?
Held: That it is the first duty
of the Court to ascertain what
are the averments of the
respective parties, viz: the
claimant, judgment creditor and
if necessary the judgment debtor
also; if the claim is that the
property,. is not in possession
of the debtor the execution
creditor
(a)
may deny claimant's possession
and seek to prove that of the
debtor or
(b)
admit p088ession of claimant but
aver that it is on account of or
in trust for the debtor or that
claimant is paying rent to the
debtor at the time of the
attachment; and if proved the
Court will' disallow the
claim. Question of debtor's
title to premises would become
one of the issues and the onus
will be on the judgment creditor
to prove .it.
Held: that on the pleadings ns
they stood the answer to the
question submitted was in the
negative.
Ayo Williams
for Plaintiff.
Philip Oddie
for Defendant.
The following joint opinion was
given:-
KINGDON, 'C.J., NIGERIA, BAKER
AND FRANCIS, JJ.
The following case has been
stated by Butler LLoyd, J., for
the opinion of this Court:-
" In this case I find myself in
a difficulty. The claim is for the release of
property at 7 market
Street, Ebute Metta attached
under a writ of Fi Fa issued in
case No. 339/40. The writ is in
the usual form but it has the
words 'Interpleader Summons'
substituted for the words 'Civil
Summons' at the head, and the
words • an Interpleader'
substituted for the words' a
suit' in the body. It is clear
however that it is actually a
summons under Order 45, rule 26.
Following the usual practice
of this Court, which appears to
be based on a confusion between
rules 5, and 25 of Order 45,
pleadings were ordered and
field.
pg 27
"The effect of this procedure in
the past has been to raise the
issue of title as between the
claimant and the
judgment-debtor, who is himself
not normally a party to the
proceedings. This is an obvious
absurdity as is apparent when
the question is asked upon whom
does the burden of proof in such
proceedings lie-on the claimant
who is asserting his right to
the property or on the
judgment-creditor who is
asserting the judgment debtor's
right against the claimant?
"My difficulty arises from the
fact that I have myself followed
this form of procedure and in
the case of
Ognnmola v. lgbo
No. 38/41, I went so far as to
say: 'In cases like the present
the real issue is whether
the judgment debtor could
succeed in an action for the •
recovery of the land from the
claimant'. It has, however, been
pointed out to me that in two
other
cases-Lawuni v. lubo
No. 5/41 and
Apatira v. lgbo
No. 82/41-1 held that proof of
possession by the claimant was
sufficient to entitle him to an
order for the release of the
property.
" These judgments are dearly
inconsistent and in the present
case after the plaintiff had
given evidence as to possession
I have been asked for a ruling
as to whether it is open to the
Defendant to cross examine or
adduce evidence to show that the
judgment debtor has title
which may be asserted against
that possession.
"Having carefully considered this
matter, I am dearly of the
opinion that Order 45, rule 25
is intended to protect a possessory interest and must
rule that in proceedings under
it evidence to show an
over-riding title in the
judgment debtor cannot be
admitted. Counsel for the
Defendant has admitted that he
cannot dispute the Plaintiff's
possession, and it follows that
in my opinion the latter is·
entitled to succeed. In view,
however, of the long-standing
practice to which I have
referred, I think it right to
take the opinion of the West
African Court of Appeal before
giving judgment to that effect.
"I accordingly state the
following case for their
consideration:
Plaintiff having proved
possession in his own right is
it open to the Defendant in the
present proceedings to,. prove
that the judgment debtor could
succeed in an action for recovery
of possession. against him "
Before answering the question
asked we think it desirable to
point out one of the causes of
the present difficulty.' We
refer to circular No. 1293/76 of
the 30th April, 1938, issued by
the Chief Registrar upon the
instructions of the Chief
Justice. This gives a specimen
form. for claimants preferring a
claim under Schedule IT .Order
45 rule 25 of the Supreme Court
Rules. The form indicates that
the claim should be filed as a
fresh suit with the claimant. as
Plaintiff and the Execution
Crel1itor as Defendant. We think
that this is not the intention
of the rule, and that some of
the difficulties will disappear
if the intention of the rule be
followed, i.e. the claim
made and investigated ill the
original suit., the claimant
becoming claimant therein. 'rile
judgment debtor will then remain
a party to the proceedings and
in certain circumstances it
is important that he should do
so. The necessary amendment's to
the form can easily be made.
Upon the claim
pg
28
being preferred it will come
before the Court in the original
suit, and it will be the first
duty of the Court to ascertain
what are the averments of the
respective parties, viz : the
claimant, the judgment creditor
and if necessary the judgment
debtor also. It
may be necessary to require the
averments to be reduced to
writing.
The ordinary claim to be
preferred is that the property
is not in the possession of the
debtor, but in the possession of
another person (usually the
claimant).
In answer to such a claim the
judgment creditor may put
forward several contentions, viz
:-
(a)
He may deny the claimant's
possession and seek to prove the
debtor's possession. If he does
so there is a straight issue as
to possession, and the question
of any ownership by someone else
does not arise. The onus is
dearly on the claimant to
establish his possession, or
(b)
He may admit the claimant's
possession, but aver that. such
possession is on account of or
in trust for the debtor, or that
the claimant, though in
occupation of the premises, was
paying rent to the debtor at the
time of the attachment. If any
such averment succeeds the rule
provides that the Court shall
disallow the claim.
In these cases the question of
the debtor's title to, the
premises will almost certainly
become one of the issues, and
the onus will be
I
upon the judgment creditor to
prove it, and it will be open to
him to lead evidence in support
of his averment.
In the present case the
pleadings and proceedings have
been laid before us together
with the Case Stated. They
amount to this -that the
judgment creditor (defendant)
does not dispute the
claimant',!! (plaintiff's)
possession but alleges that the
land in dispute .is the family
stool land of the judgment
debtor who has never parted with
the ownership. We are of opinion
that on the pleadings as they
stand there is nothing which
amounts to an averment that the
claimant's (plaintiff's)
possession is in trust for the
debtor, and consequently the
answer we give to the question
submitted to us is " On the
pleadings as they stand, No."
But had the creditor (defendant)
worded his defence so as to
follow more closely the wording
of the rule by averring that the
claimant's (plaintiff's)
possession is in trust for the
debtor, or if he should be
allowed to amend his pleading in
that sense, then the answer to
the question would be in the
affirmative ..
