Theodore Akindele John V. Amodu Tijani Chief Oluwa (1942)

LawGlobal Hub Judgment Report – West African Court of Appeal

Interpleader—Possessory interest—Order 45 rule 25 procedure.

Facts

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 against him?

Held

That it is the first duty of the Court to ascertain what are the averments of the respective parties, via: 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 possession 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 as they stood the answer to the question submitted was in the negative.