By Onyekachi Umah, Esq.
Introduction: The result of a court proceeding is a judgment and the enforcement of judgment may include the seizure of property. In a country with no reliable data on population, property ownership and practically anything, it is common to find wrong seizure of property by court staff/sheriffs. In an attempt to seize property of a person in line with an order of court, it is possible for the wrong property or the property of a wrong/unrelated person to be wrongly seized. Like the popular Nollywood actress (Rachael Okonkwo, aka, “Nkoli Nwa Nsukka”) puts it, “mistake hadu aguma” (mistake is everywhere), even in the enforcement of orders of court.
The bad news is that once a property is seized on the orders of a court, it cannot be released without an order of court. Whether the seizure was rightly or wrongly done, is immaterial. The application of force or fraud in recovering a wrongly seized property from court of staff of court is on its own a crime. So, here is how to lawfully recover property wrongly seized by any court in Nigeria. This work focuses on how and who can initiate interpleader proceedings/summons in Nigeria.
Interpleader Proceedings through Appellate Court Judgments:
The judgments of courts are part of the sources of Nigerian laws. The apex court in Nigeria is the Supreme Court of Nigeria and it is followed by the Court of Appeal and every other courts. This work will use case law (judgments of the Supreme Court of Nigeria and the Court of Appeal) to explain How to lawfully recover property wrongly seized by court (interpleader proceedings) in any part of Nigeria.
1. Nature of Interpleader proceedings:
“The Black’s Law Dictionary, Eighth Edition gives an insight into what interpleader summons is all about by defining the following words or terms “interplea”; “interplead” and “interpleader” on page 838 as follows: –
“interplea”. A pleading by which a stakeholder places the disputed property into the Court’s registry; the plea made by an interpleader.”
“interplead”. vb. 1. (Of a claimant) to assert one’s own claim regarding property or an issue already before the Court. 2. (Of a stakeholder) to institute an interpleader action, usu. by depositing disputed property into the Court’s registry to abide the the Court’s decision about who is entitled to the property. “interpleader”, n. 1. A suit to determine a right to property held by usu. 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. Typically, a stakeholder initiates an interpleader both to determine who should receive the property and to avoid multiple liability. 2. Loosely, a party who interpleads.” Suffice, it to say that I am of the considered view having regard to the definitions re-produced above that an interpleader summons although founded on the execution of the judgment in a case, is in law separate and distinct from the case in which the judgment that has been executed or enforced was given. In this regard, see also the case of OLATUNDE V. OAU (1998) LPELR – 2575 (SC) wherein the Supreme Court per Iguh, JSC; said thus: –
“It cannot be disputed that in interpleader proceedings, the claimant as a rule is deemed to be the plaintiff and the judgment creditor, the defendant. Accordingly, the onus is generally on the claimant, as the plaintiff in the proceedings, to establish title to the property he claims. However, where the title he claims is not absolute, he must prove the precise interest or title of the nature he has claimed.” See also the case of KALA V. POTISKUM (1998) LPELR – 1648 (SC).” Per LOKULO-SODIPE ,J.C.A (Pp. 19-21 paras. E-E) in the case of TANGENT LIMITED v. BARR. JUDE I. OGAMBA & ORS (2018) LPELR-44803(CA).
2.Nature of Interpleader proceedings:
“I am of the view that it is necessary at this stage to consider the nature of interpleader proceedings before going into the merits of the appeal. Where a judgment creditor attaches the property of a judgment debtor in satisfaction of a judgment debt and a third party claims ownership of the property attached, the third party files an interpleader summons before the Court for a declaration in his favour in respect of the property in dispute. The burden of proof in interpleader proceedings is the same as in civil causes or matters. He who asserts must prove. See Sections 136 and 137 of the Evidence Act. The claimant must succeed on a preponderance of evidence. The Supreme Court, in the case of Alhaji Musa Kala vs Alhaji Barau Potiskum & Ors. (1998) 3 NWLR (540) 1 at 17-18 H.B per Iguh, JSC elucidated the burden of proof in interpleader proceedings thus: “It is trite that in interpleader proceedings, the claimant generally is deemed to be the plaintiff and the judgment creditor the defendant. Accordingly the burden of proof, again as a general rule is on the claimant as plaintiff in the proceedings. The onus lies on him to establish his title to the property in dispute, or where his claim is not absolute title he must prove the precise interest or title he claimed. Where however, the claimant was in possession of the property 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 onus must be on the judgment creditor to establish his claim.” See also: Jinadu Vs Babaoye (1966) 2 All NLR 241 at 243 and Maigoro Vs Bashir (2000) 11 NWLR (679) 453 at 464-465 E.C.” Per KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN ,J.C.A ( Pp. 9-11, paras. D-A ) in the case of WEST AFRICAN COTTON LTD & ANOR v. MAIWADA (2007) LPELR-5097(CA)
3.Nature of Interpleader proceedings and whether hearing of the proceeding must be by oral or affidavit evidence:
“Interpleader is a proceeding by which a person, who does not himself claim the property, can protect himself from legal proceedings by calling upon the Claimants to interplead, that is, claim against each other so that the title to the property, debt, etc., may be determined. Where a Sheriff seizes or intends to seize goods by way of execution, and a person, other than a Judgment debtor, claims them, the Sheriff institutes the proceedings to determine whether the property belongs to the Judgment debtor (therefore, can be seized), or to the Claimant. Held in the case of OBUMSELI & ANOR v. UWAKWE (2019) LPELR-46937(SC)
4.Purpose of an interpleader:
“The purpose of an interpleader is to seek relief by initiating proceedings to determine whether property or goods the Sheriff has seized or intends to seize, by way of execution, and as herein for sale by auction, belongs to the judgment-debtor, (and therefore can be seized), or to someone else, the Claimant and therefore cannot be seized. This, in effect is the whole purpose and raison-d’ etre of the rule. The Claimant, as herein, can issue an interpleader or by the Sherif for the Judge to summarily determine the question at issue and make an order accordingly on such terms as may be just. The Claimant has the onus to establish title to the property wrongly attached. See the case of BARCLAYS BANK DCO V. J. A. BADERINWA IN RE LEDB (1962) ALL NLR 731 734.” Per WILLIAMS-DAWODU ,J.C.A (Pp. 20 paras. A) in the case of NATHANIEL BULUS v. A.C. OKPALA & ANOR (2017) LPELR-43423(CA)
5.When an interpleader summons procedure will be applicable:
”Interpleader summons procedure is applicable where the goods and/or chattels of a person not named in the writ of fifa is attached and the person comes forward to claim his property. In such a proceeding, as a general rule, the claimant is deemed to be the plaintiff and the judgment creditor, the defendant. Accordingly, the onus is generally on the claimant, as the plaintiff in the proceedings, to establish title to the property he claims. See Olatunde v Obafemi Awolowo University & Anor (1998) 5 NWLR (pt 549) 178, (1998) LPELR – 2575 (SC), Kala v Potiskum & Anor (1998) 3 NWLR (pt 540) 1, (1998) LPELR – 1648 (SC). Interpleader proceedings are provided for in Section 34 of the Sheriffs and Civil Process Act which states: “34(1) If a claim is made to or in respect of any property attached under process of Court, or in respect of the proceeds or value thereof the registrar may, upon the application of the sheriff, as well before as after any action brought against him, issue a summons calling before the Court the party at whose instance the process issued and the party making the claim. (2) Upon the issue of the summons, any action brought in any Court in respect of the claim or of any damage arising out of the execution of the writ shall be stayed. (3) On the hearing of the summons, the Court shall adjudicate upon the claim, and shall also adjudicate between the parties or either of them and the sheriff upon any claim to damages arising or capable of arising out of the execution of the writ by the sheriff, and shall make such order in respect of any such claim and the costs of the proceedings as it thinks fit.” Held in the case of OBUMSELI & ANOR v. UWAKWE (2019) LPELR-46937(SC).
6.Procedure for bringing interpleader proceedings:
“… the procedure for bringing interpleader proceedings is as stated in Section 34 of the Sheriffs and Civil Process Act and Order VI Rule 6 of the Judgment (Enforcement) Rules, Cap 407 Laws of the Federation of Nigeria 1990 (then in force), set out hereunder: SECTION 34 Sheriffs and Civil Process Act 1. 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 as after any action brought against him, issue a summons calling before the Court the party at whose instance the process issued and the party making the claim. 2. Upon the issue of the summons, any action brought in any Court in respect of the claim or of any damage arising out of the execution of the writ shall be stayed. 3. On the hearing of the summons, the Court shall adjudicate upon the claim, and shall also adjudicate between the parties or either of them and the sheriff upon any claim to damages arising or capable of arising out of the execution of the writ by the sheriff, and shall make such order in respect of any such claim and the costs of the proceedings as it thinks fit. Order VI of the Judgment (Enforcement) Rules 4. Commencement of proceedings (1) If the Judgment creditor or plaintiff does not admit the claim, the sheriff shall, unless the claimant has withdrawn his claim, apply for the issue of a summons in accordance with the provisions of Section 34 of the Act. (2) Upon such application, the registrar shall enter interpleader proceedings in the books of the Court, and fix a day for the hearing and prepare and issue interpleader summonses to the judgment creditor or plaintiff and the claimant in such of the Forms in the First Schedule to the Act as are applicable to the case, and make all necessary copies thereof. 6. Claimant to file particulars (1) The claimant shall, within such reasonable time before the return day as the time of service permits, file in the Court registry three copies of the particulars of the property he claims and the grounds of his claim, or, in the case of a claim for rent, particulars stating the amount thereof, and the period and the premises in respect of which the rent is claimed to be due. (2) The claimant shall include in his particulars a statement of his full name, address, and occupation. (3) The registrar shall send copies of the particulars to the sheriff and the judgment creditor; Provided that the Court may, if it thinks fit, hear the proceedings although particulars have not been filed.” Per OLUDOTUN ADEBOLA ADEFOPE-OKOJIE ,J.C.A ( Pp. 31-34, paras. F-B ) in the case of MUHAMMED v. MARTINS ELECTRONICS CO. LTD (2017) LPELR-43138(CA)
7. When an interpleader summons procedure will be applicable:
“It is also a correct statement of the law that Interpleader Summons is the proper process to file when a party claims ownership of a property sold/auctioned to another person in execution of the judgment of a Court. See Kala v. Potiskum (supra), Maigoro v. Bashir (supra).” Per ADAMU JAURO ,J.C.A ( P. 10, paras. A-B ) in the case of DAWOOD GLOBAL INTERGRATED CO. LTD v. GAJERE & ANOR (2017) LPELR-43369(CA).
8. When an interpleader summons procedure will be applicable:
“Relief by way of interpleader is provided for in Section 34 of the Sheriffs and Civil Process Act and in Order 28 of the High Court of Plateau State Civil Procedure Rules and it is at the behest of a person who claims that his property has been wrongly attached in execution of a judgment of Court. Hence, it is stated that interpleader proceedings are initiated when the property of a person not named in a writ of fieri facias or writ of possession is attached in execution of a judgment -West Africa Cotton Ltd Vs Yankara (2008) 4 NWLR (Pt 1077) 323, Ijewere Vs Eribo (2014) LPELR-23263(CA) and Ramada International & Pharmacy Ltd Vs Ezeonu (2016) 14 NWLR (Pt 1533) 339. In other words, interpleader proceedings are inappropriate where the property of a person not named in a writ of execution is not attached by the Sheriff of Court in execution of judgment.” Per HABEEB ADEWALE OLUMUYIWA ABIRU ,J.C.A ( P. 16, paras. A-E ) in the case of DAWOOD GLOBAL INTERGRATED CO. LTD v. GAJERE & ANOR (2017) LPELR-43369(CA)
9. The onus of proof in an interpleader summons proceeding and when same will change:
“It is trite that in interpleader proceedings, the claimant generally is deemed to be the plaintiff and the judgment creditor, the defendant. 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 establish his title to the property in dispute, or where his claim is not absolute title, he must prove the precise 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 onus must be on the judgment creditor to establish his claim. See Rabiu Jinadu v. Babaoye (1966) 2 All N.L.R. 241 per Taylor, C.J., as he then was. ” Per IGUH ,J.S.C (Pp. 25 paras. C) in the case of ALHAJI MUSA KALA v. ALHAJI BURAU POTISKUM & ANOR (1998) LPELR-1648(SC)
10. Interpretation of Section 32 of the Sheriffs and Civil Process Act as to claims in respect of property attached in execution of a Court judgment:
“The bond was taken by the Deputy Sheriff under Section 32 of the Sheriffs and Civil Process Act, which provides: (1) Where a claim is made to or in respect of any property attached in execution under process of a Court, the claimant may- (a) deposit with the Sheriff either- (i) the amount of the value of the property claimed; or (ii) the sum, if any, which the Sheriff is allowed to charge as costs for keeping possession of the property until the decision of the Court can be obtained on the claim; or (b) give the Sheriff in the prescribed manner security for the value of the property claimed. (2) For the purpose of this section the amount of the value of the property claimed shall in case of dispute be fixed by appraisement and where that amount is deposited as aforesaid it shall be paid by the Sheriff into Court to abide the decision of the Court upon the claim. (3) In default of the claimant complying with the foregoing provisions of this section, the Sheriff shall sell the property as if no such claim had been made, and shall pay into Court the proceeds of the sale to abide the decision of the Court. I agree with the submission of the appellants that the bond must be read subject to the provisions of Section 32, as the Deputy Sheriff had no authority to take the bond except in accordance with the provisions of that section. It seems to me that the section is designed to protect the Sheriff against any loss or diminution in the value of the property, pending the result of the interpleader proceedings. Any other construction would mean that the assets of the judgment debtor would be gratuitously enhanced at the expense of the sureties.” Per UNSWORTH ,J.S.C (Pp. 4-6 paras. F) in the case of C. ANUEYIAGU & ANOR v. DEPUTY SHERIFF KANO (1962) LPELR-25152(SC)
Conclusion:
There could be a mistake in the enforcement of an order of a court, which could lead to wrong seizure of property. Since wherever there is a wrong, there is a remedy, the Nigerian law does not allow any person to suffer from such mistakes. So, where there is a wrongful seizure of property, the victim has every right to engage the services of a lawyer and approach a court for remedy. This will include instituting an interpleader proceeding, where the victim must prove that he is rightful owner of the seized property and that the seizure is wrong, since the property does not belong to the judgment-debtor.
My authorities, are:
1. Sections 1, 2, 3, 4, 5, 6, 36, 318 and 319 of the Constitution of the Federal Republic of Nigeria, 1999.
2. Judgment of the Supreme Court of Nigeria in the case of BODE THOMAS v. FEDERAL JUDICIAL SERVICE COMMISSION (2016) LPELR-48124(SC).
3. Judgment of the Supreme Court of Nigeria in the case of WITT & BUSCH LIMITED v. DALE POWER SYSTEMS PLC (2007) LPELR-3499(SC)
4. Onyekachi Umah, “Effect of an Application Brought Under a Wrong Order or Rule of Court” (LearnNigerianLaws.com, 8 March 2021) <https://learnnigerianlaws.com/effect-of-an-application-brought-under-a-wrong-order-or-rule-of-court/> accessed 9 March 2021.
5. Onyekachi Umah, “Why Courts Must Hear Stupid Applications/Motions?” (LearnNigerianLaws.com, 17 September 2020) <https://learnnigerianlaws.com/why-courts-must-hear-stupid-applications-motions/> accessed 7 March 2021.
6. Onyekachi Umah, “When Courts Must Refuse To Consider Issues/Applications Before It” (LearnNigerianLaws.com, 10 September 2020) <https://learnnigerianlaws.com/when-courts-must-refuse-to-consider-issues-applications-before-it/> accessed 7 March 2021.
7. Onyekachi Umah, “Oral Application for Bail is Allowed in High Courts” (LearnNigerianLaws.com, 31 August 2020) <https://learnnigerianlaws.com/oral-application-for-bail-is-allowed-in-high-courts/> accessed 7 March 2021.
8. Chris Admin, “A High Court of the Federal Capital Territory (FCT) ordered the issuance of contempt proceedings against the directors of Diamond Bank PLC” (LearnNigerianLaws.com, 9 August 2018) <https://learnnigerianlaws.com/a-high-court-of-the-federal-capital-territory-fct-ordered-the-issuance-of-contempt-proceedings-against-the-directors-of-diamond-bank-plc/> accessed 8 March 2021.
9. Onyekachi Umah, “You Cannot Enforce A Judgement After 2 Years and 6 Years Against A Party and His Representatives Respectively” (LearnNigerianLaws.com, 1 August 2018) <https://learnnigerianlaws.com/daily-law-tips-by-onyekachi-umah-esq-tip-154-you-cannot-enforce-a-judgement-after-2-years-and-6-years-against-a-party-and-his-representatives-respectively/> accessed 8 March 2021
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