WAWU V ABDULLAHI

WAWU V ABDULLAHI


IN THE COURT OF APPEAL
IN THE JOS JUDICIAL DIVISION
HOLDEN AT JOS

ON THURSDAY, 22ND FEBRUARY, 2018


Suit No: CA/J/16/2016

CITATION:

Before Their Lordships:

ADAMU JAURO, JCA

UCHECHUKWU ONYEMENAM, JCA

HABEEB ADEWALE OLUMUYIWA ABIRU, JCA


BETWEEN

MODU WAWU
(APPELLANT)

AND

FATIMA ABDULLAHI
(RESPONDENT)


PRONOUNCEMENT


A. EVIDENCE
1. Documentary Evidence – How a party relying on documentary evidence is necessitated to link the document through oral evidence
Duty of a party relying on documents in support of his case

It is settled law that documentary evidence where admissible is the best form of evidence. Skye Bank Plc & Anor V. Akinpelu (2010) LPELR-SC.38/2003; Interdrill (Nig) Ltd. & Anor. V. UBA Plc (2017) LPELR-SC.4/2007. Howbeit, the position of the law is that it is the duty of a party who has tendered a document in Court in support of his case to specifically through oral evidence link or tie up the document to the purpose for which it was tendered in evidence for such document to be evaluated and ascribed probative value by the Court. It is not the duty of the Court to investigate documents placed before it to ascertain the purpose for which it was tendered in evidence. A party who as in the instant case did not lead evidence to tie up document he has tendered before a Court is deemed not to have talked to the document but merely dumped the document on the Court and in which case the document would not be accorded probative value. It is immaterial the way and manner the document was admitted in evidence. Even when a document was properly admitted in evidence and most useful in the determination of the case, once there is no admissible oral evidence to link up the document with the purport for which it was tendered and relate same to the case; then the document will not add value to the case of the party because the document though may speak for itself after oral evidence has led to its proper admission in proceedings, but before then, oral evidence must be called to speak to them at the initial stage of the proceedings to avoid the ailment of dumping the same on the Court. Ejiogu V. Onyeaguocha (2006) ALL FWLR (PT. 317) 467; Arabambi V. Advance Bev. Ind. Ltd. (2006) ALL FWLR (PT. 295) 581; Lumatron Nigeria Ltd. & Anor. V. First City Monument Bank Plc. (2016) LPELR-CA/L/860/2013. I held above that there was no evidence before the trial Court, while I will not labour on other issues surrounding the documents tendered by the Respondent in attempt to prove her claim, suffice it for me to say that the said exhibits were not pleaded in the particulars of claim filed by the Claimant. The same were tendered by the counsel for the Appellant from the bar. There was no oral evidence to tie up the documents to the purpose for which the Claimant placed it before the Court. The exhibits were not properly placed before the Court and even if they were, they had no probative value for all I have said above. The trial ourt was therefore in error to have accorded the documents probative value and relied on them to arrive at its decision. Per ONYEMENAM, JCA. read in context

2. Burden of Proof and Standard of Proof – When burden of proof shifts in interpleader summons proceedings
Burden and standard of proof in interpleader summons proceedings

As I stated earlier in this judgment, the burden of proof was on the Respondent as the Claimant at the trial Court to establish title to the property she claims because as in any other civil matter he who asserts must prove on the balance of probability. In addition to being an interpleader summons the Respondent herein who as the Claimant claimed title to land could only succeed on the strength of her case and not on the weakness of the Appellant’s case. I do agree with the reasoning of the trial Court in line with the position of the law that where the Claimant in an interpleader proceedings is established to be in possession of the property, then the onus of proof shifts to the Defendant to prove his title. The Respondent in the instant case who is the Claimant had no evidence placed before the Court to establish she is in occupation of the property in question and as such the trial Court could not rightly in law find that she was in possession and if not in possession the onus remained on her to prove her assertion in which case the burden of proof did not shift to the Appellant as Defendants in the interpleader proceedings. The burden of proof in the instant case where the claim is for title to land would not shift even upon the admission of the Appellant although the evidence of the Appellant that supports the Respondent’s case could aid her to succeed in proving her case. From what I have said, I hold that the trial Court was wrong when it held that the burden of proof in the instant case shifted to the Appellant. Per ONYEMENAM, JCA. read in context

3. Burden of Proof and Standard of Proof – What should be proven by parties in interpleader proceedings
Burden and standard of proof in interpleader summons proceedings

In interpleader proceedings, the Claimant is regarded as the Plaintiff while the judgment creditor is the Defendant. Therefore, the burden is on the Claimant as the plaintiff to establish title to the property he claims. This is so because the burden of proof in interpleader proceedings is the same as in civil causes. He who asserts must prove. The claimant must succeed on preponderance of evidence. SECTIONS 136 & 137 OF THE EVIDENCE ACT; Kala V. Potiskum (1998) 3 NWLR (PT. 540)1; 1-2 S.C 132; Olatunde V. OAU & Anor. (1998) LPELR – SC.44/1993; Maigoro V. Bashir (2000) 11 NWLR (679) 453. However, where it is established that the Claimant was in possession of the property at the time of attachment, the reverse is the case in the onus of proof. In that case, the onus is on the judgment creditor who shall be deemed the Plaintiff to establish his case. Rabiu Jinadu V. Babaoye (1966) 2 ALL N.L.R 24; Kala V. Potiskum (Supra). The plaintiff in interpleader proceedings succeeds on the strength of his case and not on the weakness of the Defendant’s case. Howbeit, this will not apply when the case of the Defendant supports that of the Plaintiff. Kala V. Potiskum (Supra).

The Appellant’s counsel’s contention is that the Respondent as a Claimant in the interpleader proceedings did not prove her claim as she did not accompany her particulars of claim with affidavit in line with Order 43 Rule 2 of the Borno State High Court (Civil Procedure) Rules 2012. The learned trial Judge agreed with the Respondent’s counsel that the word “otherwise” in the referred rule means that “if the Court can be satisfied with the document before it then there is no need for the Affidavit”. See page 32 of the record lines 10 to 12.

Order 43 Rule 2 (supra) provides:

“2. The Applicant must satisfy the Judge by affidavit or otherwise that he:

(a) Claims no interest in the subject matter in dispute other than for charges or costs;

(b) Does not collude with any of the claimants and

(c) Is willing to pay or transfer the subject matter into Court or to dispose of it as the Judge may direct.”

I do agree as it is clear that Order 43 Rule 2 (supra) has not restricted a Claimant who has filed an interpleader summons to affidavit evidence alone as such a claimant can otherwise satisfy the Court by establishing his case other than by affidavit evidence. But the question is what legal ways can a Claimant or Plaintiff establish his case in a Court of law. It is trite that a party seeking to have judgment in his favour no matter how the law has permitted him to initiate his action must prove his case by placing legal evidence before the Court. Facts which the Court must rely on as prove to enter judgment for a party must be established through oral, documentary or any other admissible evidence.

Evidence is the fact which is admitted as both relevant to the case in determining whether or not something is true or not; and is reliable in that it can be authenticated. Averments in pleadings by way of statement of claim or particulars of claim are not evidence. Any fact averred in a statement of claim must be proved by evidence. Sule Eyigebe V. Musa Iyaji (2013) LPELR-SC 216/2004. Pleadings alone cannot constitute evidence. Statement of claim or particulars of claim is simply a Court process, it does not have mouth to talk to the Court. Neka BBB Manufacturing Company Ltd. V. ACB Ltd. (2004) LPELR-SC.32/1997; Boniface Anyika & Company Lagos Nigeria Ltd. V. Katsina U.D. Uzor (2006) 15 NWLR (PT. 1003) 571. On the contrary affidavit is sworn statement of facts believed to be true to the best personal knowledge, direct information and belief of the deponent. Josien Holding Limited V. Lornamead Limited (1995) 1 NWLR (PT. 371) 254. Affidavit constitutes evidence and any deposition therein not challenged, is deemed admitted. Owuru & Anor. V. Adigwu & Anor. (2017) LPELR-SC. 97/20 6; Henry Stephens Engineering Ltd. V. S. A. Yakubu (Nigeria) Ltd. (2009) LPELR-SC.153/2002.

From my understanding expressed above, Order 43 Rule 2 of the Borno State High Court (Civil Procedure) Rules 2012 purports that a Claimant in an interpleader proceedings shall place legal evidence before the Court in prove of his case to the satisfaction of the Court, to entitle such Claimant judgment in his favour. The said Order provides that the evidence to be placed before the Court could be affidavit evidence or any other evidence that shall satisfy the Court. In the instant case that led to this appeal the Claimant placed before the trial Court “Particulars of Claim” which in law does not constitute evidence; and which the trial Court erroneously held satisfied him in the absence of affidavit evidence.

By the provision of the Order in question, what a trial Court in interpleader proceedings should concern itself is not whether a Claimant has supported his claim with affidavit per se, but whether the Claimant has supported his claim with legal evidence which is cogent, concrete and convincing to satisfy it to enter judgment for him. I therefore reiterate my position that a trial Court could be satisfied otherwise than by affidavit evidence. However by Order 43 Rule 2 (Supra) a trial Court can only be satisfied by legal evidence. The particulars of claim which does not constitute evidence placed before the trial Court is not such that could satisfy any Court of law to enter judgment in favour of the Respondent herein. With the particulars of claim the Claimant still needed evidence to prove same so as to satisfy the trial Court otherwise than by affidavit. There was therefore nothing to satisfy the trial Court to enter judgment for the Respondent as the Claimant. Accordingly, the trial Court was wrong in holding that he was satisfied otherwise and in finding for the Respondent. Per ONYEMENAM, JCA. read in context

B. LAND LAW
4. Ownership of Land – What must be proven in a claim for ownership of land
What must be established in a claim of ownership of land

The lower Court entered judgment in default of the Appellant filing a defence to the claim of the Respondent. The property involved in this case is a landed property and it is settled law that a claim for ownership of land is not granted wholly or solely on admissions in the pleadings or in default of defence. Thus, a party claiming ownership of land must satisfy the Court by credible evidence, and not by an admission on the pleadings or by a default in filing pleadings, that he is entitled to such a claim. Apart from the fact that the ourt has a discretion whether or not to grant the claim, the success of a claimant in such an action depends entirely on the strength of his own case and nor on the weakness of the defence -Bello Vs Eweka (1981) 1 SC 101, Fabunmi Vs Agbe (1985) 1 NWLR(Pt 2) 299, Motunwase Vs Sorungbe (1988) 4 NWLR (Pt 92) 90, General Cotton Mills Ltd Vs Travellers Palace Hotel Ltd (2006) 10 NWLR (Pt 989) 502, Akaninwo Vs Nsirim (2008) 9 NWLR (Pt 1093) 439, Olubodun Vs Lawal (2008) 17 NWLR (Pt 1115) 1, Adu Vs Gbadamosi (2009) 6 NWLR (Pt 1136) 110. It is not enough for the claimant in such an action to set up a case through averments in the statement of claim. Proof of the claim must be established. There must be strong and positive evidence to establish his title. This is so, even though the defendant at the Court of trial admitted the claimant’s claim – Adeniji Vs Adeniji (1972) 4 SC 10, Ezeokonkwo Vs Okeke (1991) 2 NWLR (Pt 173) 331, Onu Vs Agu (1996) 5 NWLR (Pt 451) 652, Obawole Vs Williams (1996) 10 NWLR (Pt 477) 196, Temile Vs Awani (2001) 12 NWLR (Pt 728) 726. Even where the suit is undefended, the Court is entitled to be satisfied that the evidence adduced is credible and sufficient to sustain the claim – Atilade Vs Atilade (1968) 1 All NLR 27, Ayoke Vs Bello (1992) 1 NWLR (Pt 218) 380, Aliyu Vs Adewuyi (1996) 4 NWLR (Pt 442) 284, Makanjuola Vs Ajilore (2001) 12 NWLR (Pt 727) 416, Hawad International Schools Ltd Vs Mirna Projects Ventures Ltd (2005) 1 NWLR (pt 908) 552.

The lower Court was clearly in error when it entered judgment in favour of the Respondent on the Interpleader Summons without his having first led credible and cogent evidence in proof of his claim. Per ABIRU, JCA. read in context

C. PRACTICE AND PROCEDURE
5. Interpleader Proceedings – What interpleader summons connote
Nature of Interpleader proceedings

Interpleader summons is simply the process for originating an action where the Claimant claims ownership or title to property sold or auctioned in execution of the order of a Court. Kala V. Potiskum (1998) 3 NWLR (PT. 540)1; 1- S.C 132; Dawood Global Integrated Co. Ltd. V. Gajere & Anor. (2017) LPELR-CA/J/215/2016; Maigoro V. Bashir. Per ONYEMENAM, JCA. read in context


LEAD JUDGMENT DELIVERED BY ONYEMENAM, JCA


This appeal is against the decisions of the Borno State High Court, by A.Z. Mussa, J. delivered on 27th February, 2014. The Respondent as claimant filed Interpleader summons against the Appellant as the Defendant at the Borno State High Court, Maiduguri.

At the trial Court the Respondent claimed a fenced plot of land taken in execution and under process issuing out of the trial Court. The particulars of her claim are as set out hereunder:
“1. The Claimant is Fatima Abdullahi who resides at Bulabulin Ward Maiduguri.

2. The Claimant purchased eight partially fenced plots of land situated or located at Ajilari Ward, Gomari Maiduguri on the 14/4/2010

3. The Claimant immediately totally fenced the eight partially fenced plots with blocks.

4. The Claimant stated that she bought the said plots of land after the vendors Zanna Abdullahi and his brothers and sisters decided to sell the land to her for the sum of N3,400,000.00 (Three Million Four Hundred Thousand Naira Only).

5. The Claimant stated that the said Vendor inherited the said plots of land from their father who died.

6. The Claimant stated that the Vendor’s father late Alhaji Abdullahi of Bulabulin Ward Maiduguri died in 2003.

7. The Claimant stated to the Vendors that his late father inherited the said land in 1978 after the demise of his mother, Zara Kura who was in possession for more than 50 years who in turn inherited from her own father.

8. The Claimant stated that when the Vendor’s father wanted to have a customary right of occupancy he was advised to apply for permit to alienate which he did and his application was endorsed by the Village Head and the District Head of Maiduguri dated 11/12/2002 and got permit to alienate and applied for customary right of occupancy on 11/12/2002 which is still pending.

Whereof the Claimant claimed the eight plots of land fully fenced.” See pages 2 to 3 of the record.

In a nutshell the fact of the case at the trial Court is that the Respondent filed an Interpleader Summons against the Appellant as per the particulars of claim reproduced above. The said Interpleader Summons was filed without Affidavit in Support. The Respondent did not call oral evidence in Support of her claim. The Respondent tendered two documents as Exhibits PWA (Sale Agreement) and PWB (copy of Judgement of the same Court in case No. M/205/08 – Modu Wawu V. Bulama Dala & Ors. dated 31/7/2008). See lines 13 to 22 of page 21 of the record. This judgement, Exhibit PWB is in favour of the Appellant.

Upon being served with the Respondent’s Interpleader Summons the Appellant through his counsel M.U. Bukar Esq. filed a Preliminary Objection with Grounds for the Application and Written Address dated 31st January, 2014 and filed on 4th April, 2014. See pages 4 to 11 of the record. The Respondent through counsel filed a Reply to the Preliminary Objection. See pages 12 to 17 of the record. On 10th February, 2014 both counsel adopted their respective written addresses, thereafter on 27th February, 2014; the learned trial Judge in his decisions dismissed the Appellant’s preliminary objection and also entered judgment in favour of the Respondent in the interpleader proceedings.

The Appellant being disgruntled with the decisions of the trial Court has maintained this appeal via an amended notice of appeal deemed properly filed and served on 8th March, 2016. On 25th January, 2018 when the appeal came up for hearing, Mr. A. A. Sangei who held the brief of M. S. Umar Esq. for the Appellant intimated the Court that on 3rd November, 2016, the Appellant filed an application for leave for the appeal to be heard on the Appellant’s brief alone which application was granted on 8th November, 2017. Meanwhile S. I Garba who held the brief of B. K. Alhaji Esq. for the Respondent confirmed the position as correct. Since there was no application for extension of time for the Respondent to file his Respondent’s brief, the Court went ahead to hear the appeal based on its already existing order.

The Appellant’s brief filed on 31st March, 2016 distilled the following 4 issues for the determination of the appeal, which issues are:

1. Whether or not in view of the entire circumstances of this case and having regard to the parties and the absence of evidence at the hearing of the Interpleader Summons the Lower Court was wrong in entering judgement in favour of the Respondent (Claimant) who did not adduce any evidence to prove the claim in the Interpleader Summons.

2. Whether or not the Lower Court was right when it admitted exhibits PWA and PWB.

3. Whether or not the Respondent has pleaded and tendered all relevant and credible documents/materials before the Lower Court to have judgment entered in favour of the Respondent.

4. Whether or not the Lower Court was right when it shifted and reversed the burden of proof from the Respondent (Claimant) to the Appellant (Defendant) in this case commenced through Interpleader Summons procedure.

I have examined the issues distilled by the Appellant’s counsel. It is my view that the resolution of issue 1 will answer issues 2 and 3 and as such necessary for the determination of this appeal are issues 1 and 4. Howbeit the phrasing of the said 2 issues is verbose and clumsy and as such requires rephrasing. Accordingly I will decide this appeal by answering issues 1 and 4 as issues 1 and 2, while the issues are rephrased thus:

1. Whether in the circumstances of the case the trial Court was right in entering judgment for the Respondent in the interpleader proceedings.

2. Whether the trial Court was right when it held the burden of proof shifted from the Respondent (Claimant) to the Appellant (Defendant) in this case commenced through Interpleader Summons.

SUBMISSIONS ON ISSUE 1

Whether in the circumstances of the case the trial Court was right in entering judgment for the Respondent in the interpleader proceedings.

The learned counsel for the Appellant answered the question in the negative. He submitted that in Interpleader proceedings the Claimant has the burden of proof placed on him because it is a fundamental principle of law that he who asserts must prove. He noted the absence of pleadings and evidence as the Respondent did not file pleadings nor affidavit to prove the claim in the Interpleader Summons. He referred to Sections 125 and 126 of the Evidence Act 2011; Maigoro Vs. Bashir & Anr. (2000) 11 NWLR (Pt. 679) 453 at 477 Paras. G-H and 464 paras. C-D. He contended that the exhibits tendered by the Respondent’s counsel from the bar were not pleaded; Exhibit PWB is a judgement which was delivered in favour of the Appellant in 2008 while the Respondent alleged that she purchased the land claimed in the Interpleader Summons in 2010. The learned counsel submitted for the Appellant that Exhibits PWA and PWB having not been tendered by their makers they are inadmissible in any event. He urged the Court to expunge Exhibits PWA and PWB and allow the appeal.

RESOLUTION OF ISSUE 1

Interpleader summons is simply the process for originating an action where the Claimant claims ownership or title to property sold or auctioned in execution of the order of a Court.Kala V. Potiskum (1998) 3 NWLR (PT. 540)1; 1-2 S.C 132; Dawood Global Integrated Co. Ltd. V. Gajere & Anor. (2017) LPELR-CA/J/215/2016; Maigoro V. Bashir.

In interpleader proceedings, the Claimant is regarded as the Plaintiff while the judgment creditor is the Defendant. Therefore, the burden is on the Claimant as the plaintiff to establish title to the property he claims. This is so because the burden of proof in interpleader proceedings is the same as in civil causes.

He who asserts must prove. The claimant must succeed on preponderance of evidence. SECTIONS 136 & 137 OF THE EVIDENCE ACT; Kala V. Potiskum (1998) 3 NWLR (PT. 540)1; 1-2 S.C 132; Olatunde V. OAU & Anor. (1998) LPELR – SC.44/1993; Maigoro V. Bashir (2000) 11 NWLR (679) 453. However, where it is established that the Claimant was in possession of the property at the time of attachment, the reverse is the case in the onus of proof. In that case, the onus is on the judgment creditor who shall be deemed the Plaintiff to establish his case. Rabiu Jinadu V. Babaoye (1966) 2 ALL N.L.R 24; Kala V. Potiskum (Supra). The plaintiff in interpleader proceedings succeeds on the strength of his case and not on the weakness of the Defendant’s case. Howbeit, this will not apply when the case of the Defendant supports that of the Plaintiff. kala v. potiskum (supra).

The Appellant’s counsel’s contention is that the Respondent as a Claimant in the interpleader proceedings did not prove her claim as she did not accompany her particulars of claim with affidavit in line with Order 43 Rule 2 of the Borno State High Court (Civil Procedure) Rules 2012. The learned trial Judge agreed with the Respondent’s counsel that the word “otherwise” in the referred rule means that “if the Court can be satisfied with the document before it then there is no need for the Affidavit”. See page 32 of the record lines 10 to 12.

Order 43 Rule 2 (supra) provides:

“2. The Applicant must satisfy the Judge by affidavit or otherwise that he:

(a) Claims no interest in the subject matter in dispute other than for charges or costs;

(b) Does not collude with any of the claimants and

(c) Is willing to pay or transfer the subject matter into Court or to dispose of it as the Judge may direct.”

I do agree as it is clear that Order 43 Rule 2 (supra) has not restricted a Claimant who has filed an interpleader summons to affidavit evidence alone as such a claimant can otherwise satisfy the Court by establishing his case other than by affidavit evidence. But the question is what legal ways can a Claimant or Plaintiff establish his case in a Court of law. It is trite that a party seeking to have judgment in his favour no matter how the law has permitted him to initiate his action must prove his case by placing legal evidence before the Court. Facts which the Court must rely on as prove to enter judgment for a party must be established through oral, documentary or any other admissible evidence.

Evidence is the fact which is admitted as both relevant to the case in determining whether or not something is true or not; and is reliable in that it can be authenticated. Averments in pleadings by way of statement of claim or particulars of claim are not evidence. Any fact averred in a statement of claim must be proved by evidence. Sule Eyigebe V. Musa Iyaji (2013) LPELR-SC 216/2004.

Pleadings alone cannot constitute evidence. Statement of claim or particulars of claim is simply a Court process, it does not have mouth to talk to the Court. Neka BBB Manufacturing Company Ltd. V. ACB Ltd. (2004) LPELR-SC.32/1997; Bonifcae Anyika & Company Lagos Nigeria Ltd V. Katsina U.D. Uzor (2006) 15 NWLR (PT. 1003) 571. On the contrary affidavit is sworn statement of facts believed to be true to the best personal knowledge, direct information and belief of the deponent. Josien Holding Limited V. Lornamead Limited (1995) 1 NWLR (PT. 371) 254. Affidavit constitutes evidence and any deposition therein not challenged, is deemed admitted. Owuru & Anor V. Adigwu & Anor. (2017) LPELR-SC.197/2016; Henry Stephens Engineering Ltd. V. S. A. Yakubu (Nigeria) Ltd. (2009) LPELR-SC.153/2002.

From my understanding expressed above, Order 43 Rule 2 of the Borno State High Court (Civil Procedure) Rules 2012 purports that a Claimant in an interpleader proceedings shall place legal evidence before the Court in prove of his case to the satisfaction of the Court, to entitle such Claimant judgment in his favour. The said Order provides that the evidence to be placed before the Court could be affidavit evidence or any other evidence that shall satisfy the Court. In the instant case that led to this appeal the Claimant placed before the trial Court “Particulars of Claim” which in law does not constitute evidence; and which the trial Court erroneously held satisfied him in the absence of affidavit evidence.

By the provision of the Order in question, what a trial Court in interpleader proceedings should concern itself is not whether a Claimant has supported his claim with affidavit per se, but whether the Claimant has supported his claim with legal evidence which is cogent, concrete and convincing to satisfy it to enter judgment for him. I therefore reiterate my position that a trial Court could be satisfied otherwise than by affidavit evidence. However by Order 43 Rule 2 (supra) a trial Court can only be satisfied by legal evidence. The particulars of claim which does not constitute evidence placed before the trial ourt is not such that could satisfy any Court of law to enter judgment in favour of the Respondent herein. With the particulars of claim the Claimant still needed evidence to prove same so as to satisfy the trial Court otherwise than by affidavit. There was therefore nothing to satisfy the trial Court to enter judgment for the Respondent as the Claimant. Accordingly, the trial Court was wrong in holding that he was satisfied otherwise and in finding for the Respondent.

On the documents tendered as Exhibits PWA (Sale Agreement) and PWB (copy of the judgment of the same Court in case No. M/205/08-Modu Wawu V. Bulama Dala & Ors. dated 31/7/2008). It is settled law that documentary evidence where admissible is the best form of evidence. Skye Bank Plc & Anor. V. Akinpelu (2010) LPELR-SC.38/2003; Interdrill (Nig) Ltd. & Anor. V. UBA Plc (2017) LPELR-SC.4/2007. Howbeit, the position of the law is that it is the duty of a party who has tendered a document in Court in support of his case to specifically through oral evidence link or tie up the document to the purpose for which it was tendered in evidence for such document to be evaluated and ascribed probative value by the Court. It is not the duty of the Court to investigate documents placed before it to ascertain the purpose for which it was tendered in evidence. A party who as in the instant case did not lead evidence to tie up document he has tendered before a Court is deemed not to have talked to the document but merely dumped the document on the Court and in which case the document would not be accorded probative value. It is immaterial the way and manner the document was admitted in evidence. Even when a document was properly admitted in evidence and most useful in the determination of the case, once there is no admissible oral evidence to link up the document with the purport for which it was tendered and relate same to the case; then the document will not add value to the case of the party because the document though may speak for itself after oral evidence has led to its proper admission in proceedings, but before then, oral evidence must be called to speak to them at the initial stage of the proceedings to avoid the ailment of dumping the same on the Court. Ejiogu V. Onyeaguocha (2006) ALL FWLR (PT. 317) 467; Arabambi V. Advance Bev. Ind. Ltd. (2006) ALL FWLR (PT. 295) 581; Lumatron Nigeria Ltd. & Anor. V. First City Monument Bank Plc. (2016) LPELR-CA/L/860/2013.

I held above that there was no evidence before the trial Court, while I will not labour on other issues surrounding the documents tendered by the Respondent in attempt to prove her claim, suffice it for me to say that the said exhibits were not pleaded in the particulars of claim filed by the Claimant. The same were tendered by the counsel for the Appellant from the bar. There was no oral evidence to tie up the documents to the purpose for which the Claimant placed it before the Court. The exhibits were not properly placed before the Court and even if they were, they had no probative value for all I have said above. The trial Court was therefore in error to have accorded the documents probative value and relied on them to arrive at its decision.

I resolve this issue in favour of the Appellant.

SUBMISSIONS ON ISSUE 2

Whether the trial Court was right when it held that the burden of proof shifted from the Respondent (Claimant) to the Appellant (Defendant) in this case commenced through Interpleader Summons.

The learned counsel for the Appellant submitted that in a claim under Interpleader summons like in this case, the onus is on the Claimant to establish his or her case on the strength of his evidence. It was contended for the Appellant that since the Respondent’s pleadings in the particulars of claim is bereft of evidence having not called any witness, it is trite that the Appellant who had been and is still in possession of the land in dispute be given judgment. He urged the Court to resolve the issue in favour of the Appellant and to allow the Appeal.

As I stated earlier in this judgment, the burden of proof was on the Respondent as the Claimant at the trial Court to establish title to the property she claims because as in any other civil matter he who asserts must prove on the balance of probability. In addition to being an interpleader summons the Respondent herein who as the Claimant claimed title to land could only succeed on the strength of her case and not on the weakness of the Appellant’s case. I do agree with the reasoning of the trial Court in line with the position of the law that where the Claimant in an interpleader proceedings is established to be in possession of the property, then the onus of proof shifts to the Defendant to prove his title. The Respondent in the instant case who is the Claimant had no evidence placed before the Court to establish she is in occupation of the property in question and as such the trial Court could not rightly in law find that she was in possession and if not in possession the onus remained on her to prove her assertion in which case the burden of proof did not shift to the Appellant as Defendants in the interpleader proceedings. The burden of proof in the instant case where the claim is for title to land would not shift even upon the admission of the Appellant although the evidence of the Appellant that supports the Respondent’s case could aid her to succeed in proving her case. From what I have said, I hold that the trial Court was wrong when it held that the burden of proof in the instant case shifted to the Appellant.

I resolve issue 2 in favour of the Appellant.

From the foregoing I conclude that the appeal has merits. The same succeeds and is allowed. I set aside both decisions of the Borno State High Court embodied in its ruling and judgment delivered on 27th February, 2014 in Suit No: BOHC/MG/CV/63/12.

I make order dismissing the interpleader summons of the Respondent.

I award a cost of N100,000.00 in favour of the Appellant.

JAURO, JCA

I have had the opportunity of reading in advance the lead Judgment just delivered by my learned brother, UCHECHUKWU ONYEMENAM, JCA. I am in complete agreement with the reasoning and conclusions contained therein to the effect that the appeal is meritorious.

I adopt the said Judgment as mine in allowing the appeal. I abide by all consequential orders made, including order as to costs.

ABIRU, JCA

I have had the privilege of reading before now the lead judgment delivered by my learned brother, Uchechukwu Onyemenam, JCA. His Lordship has ably considered and resolved the issues in contention in the appeal. I agree with the reasoning and abide the conclusions reached.

The Appellant obtained judgment in a suit, Suit No M/20S/ 0 8, against one Bulama Dala on the 31st of July, 2008. Apparendy, the Appellant executed the judgment by attaching some plots of land situate at Ajilari Ward, Gomari Maiduguri in Borno State. Consequent thereupon, the Respondent took out an Interpleader Summons claiming to own the said plots of land and he filed a Particulars of Claim. The Respondent did not file an affidavit in support of the Summons. The Appellant did not file a response to the Interpleader Summons.

The records show that in the course of proceedings on the 3rd of February, 2014, Counsel to the Respondent tendered two documents from the Bar – a Sale Agreement between one Zannah Abdullahi, Mustapha Abdullahi & Ors and the Respondent, and the a copy of the judgment in Suit No M/20S/2008 and he urged the lower Court to enter default judgment in favour of the Respondent pursuant to the provisions of Order 20 Rule 6 and 9 of the High Court of Borno State Rules. The lower Court adjourned the matter to the 10th of February, 2014 for judgment.

The records show that Counsel to the Appellant filed a notice of preliminary objection challenging the competence of the Interpleader Summons on the 4th of February, 2014 and it was supported with a written address. Counsel to the Respondent filed a response address to the preliminary objection on the 5th of February, 2014. The records show that the lower Court took arguments on the notice of preliminary objection on the 10th of February, 2014 and it adjourned same for

Ruling to a date to be communicated to the parties. The records show that the lower Court delivered Ruling on the 2Th of February, 2014 dismissing the notice of preliminary objection and it proceeded on the same day to enter judgment in favour of the Respondent on the Interpleader Summons. This appeal is against the judgment of the lower Court.

The core complaint of the Appellant in this appeal was that the lower Court was in error in entering default judgment on the Interpleader Summons without the Respondent having led any form of credible evidence in proof of the averments in the Particulars of Claim. It is settled law, as stated in the lead judgment, that on an Interpleader Summons, the Claimant is treated as the plaintiff whilst the Judgment Creditor is regarded as the defendant and the onus is on the Claimant, as plaintiff, to prove his title to the property he claims – International Merchant Bank (Nig) Ltd Vs Dabiri (1998) 1 NWLR (Pt 533) 284, West African Cotton Ltd Vs Maiwada (2008) All FWLR (Pt. 405) 1784. The law, however, recognizes that where the Claimant was in possession of the property at the time of the attachment, it is the Judgment Creditor that will be treated as the plaintiff while the Claimant will be the defendant and the onus of proof will be reversed and it will be on the Judgment Creditor to establish his claim – Jinadu Vs Babaoye (1966) 2 All NLR 24, Kala Vs Potiskum (1998) 3 NWLR (Pt 540) 1.

In the instant case, it was not part of the averments of the Respondent in the Particulars of Claim that he was in possession of the plots of land in issue at the time they were attached by the Appellant in execution of the judgment in Suit No M/205/2008. This fact cannot be inferred from any of the averments on the Particulars of Claim. The onus in this matter was thus on the Respondent to prove his ownership of the plots of land in question. The Respondent led no evidence in proof of his claim. It is correct that Counsel to the Respondent tendered a Sale Agreement from the Bar. It is trite law that, except for certified true copies of a public document, a document tendered from Bar by Counsel to a party does not amount to admissible and credible evidence except oral evidence is called to explain its essence – Sijuade Vs Oyewole (2011) LPELR 4869(CA), Omisore Vs Aregbesola (2015) LPELR 24803(CA).

The lower Court entered judgment in default of the Appellant filing a defence to the claim of the Respondent. The property involved in this case is a landed property and it is settled law that a claim for ownership of land is not granted wholly or solely on admissions in the pleadings or in default of defence. Thus, a party claiming ownership of land must satisfy the Court by credible evidence, and not by an admission on the pleadings or by a default in filing pleadings, that he is entitled to such a claim. Apart from the fact that the Court has a discretion whether or not to grant the claim, the success of a claimant in such an action depends entirely on the strength of his own case and nor on the weakness of the defence -Bello Vs Eweka (1981) 1 SC 101, Fabunmi Vs Agbe (1985) 1 NWLR(Pt 2) 299, Motunwase Vs Sorungbe (1988) 4 NWLR (Pt 92) 90, General Cotton Mills Ltd Vs Travellers Palace Hotel Ltd (2006) 10 NWLR (Pt 989) 502, Akaninwo Vs Nsirim (2008) 9 NWLR (Pt 1093) 439, Olubodun Vs Lawal (2008) 17 NWLR (Pt 1115) 1, Adu Vs Gbadamosi (2009) 6 NWLR (Pt 1136) 110.

It is not enough for the claimant in such an action to set up a case through averments in the statement of claim. Proof of the claim must be established. There must be strong and positive evidence to establish his title. This is so, even though the defendant at the Court of trial admitted the claimant’s claim – Adeniji Vs Adeniji (1972) 4 SC 10, Ezeokonkwo Vs Okeke (1991) 2 NWLR (Pt 173) 331, Onu Vs Agu (1996) 5 NWLR (Pt 451) 652, Obawole Vs Williams (1996) 10 NWLR (Pt 477) 196, Temile Vs Awani (2001) 12 NWLR (Pt 728) 726. Even where the suit is undefended, the Court is entitled to be satisfied that the evidence adduced is credible and sufficient to sustain the claim – Atilade Vs Atilade (1968) 1 All NLR 27, Ayoke Vs Bello (1992) 1 NWLR (Pt 218) 380, Aliyu Vs Adewuyi (1996) 4 NW R (Pt 442) 284, Makanjuola Vs Ajilore (2001) 12 NWLR (Pt 727) 416, Hawad International Schools Ltd Vs Mima Projects Ventures Ltd (2005) NWLR (pt 908) 552.

The lower Court was clearly in error when it entered judgment in favour of the Respondent on the Interpleader Summons without his having first led credible and cogent evidence in proof of his claim. It is for these reasons and the fuller exposition of the law in the lead judgment that I agree that there is merit in the appeal. I too hereby allow the appeal and set aside the judgment of the High of Borno State in Suit No BOHC/MG/CV /63/2012 delivered by Honorable Justice A. Z. Musa on the 27th of February, 2014. I abide the consequential orders on the Interpleader Summons and on costs contained in the lead judgment.

Appearances:

A. SANGEI with him, H. M. ABDU holding the brief of M. S. UMAR For Appellant(s)

S. I. GARBA holding the brief of B.K. ALHAJI For Respondent(s)