Alhaja Afusat Ijelu & Ors. V. Lagos State Development And Property Corporation & Ors. (1992)

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This application has been brought pursuant to the provisions of Section 213 (5) of the Constitution of Nigeria, 1979. Order 2 Rule 31(1) and (2) of the Supreme Court Rules, 1985 and the Court’s inherent powers. The applicants seek leave of this court for the following orders:-

“(i) An order for extension of time within which to seek leave to appeal against the decision of the Court of Appeal (Lagos dated 23rd November, 1989.

(ii) An order for leave to appeal as interested persons under section 213(5) of the 1979 Constitution.

(iii) An order of extension of time to appeal.

(iv) Stay of execution of the judgment pending the determination of the appeal:’

For a better understanding of the application, a brief resume of the background facts is necessary. Aziz Assad Tayah were the original owners of the property situate at 78 Nnamdi Azikwe Street, Lagos, formerly called 78 Victoria Street. These original owners had tenants on the property. Then sometime in 1960 the property was purportedly acquired by the Lagos Executive Development Board (LEDB), the predecessor in title of the Lagos State Development and Property Corporation (hereinafter called LSDPC). Notice of the said acquisition was supposedly served on the original owners by the acquiring authority which did not take immediate possession of the property and when it decided to take possession, it notified the tenants and demanded payment of rents to it.

Adonis Stores, one of such tenants took out an interpleader summons in the Lagos High Court in Suit No. M/163/84 asking the court to determine which of the two – Tayah or LSDPC – was entitled to collect the rents accruing from the property. The High Court, after hearing oral evidence ruled in favour of the LSDPC. Tayah and Adonis appealed against the ruling of the High Court to the Court of Appeal Lagos in Appeal No. CA/L/153/88. The Court of Appeal reversed the decision of the High Court and declared that Tayah were entitled “to collect rents from tenants on their property situate at No. 78 Nnamdi Azikwe Street, Lagos”.

LSDPC’s attempt to appeal against the Court of Appeal decision to this court did not succeed as their application for extension of time within which to seek leave to appeal was refused on 11th December, 1991. There is thus no appeal pending in this court by LSDPC and the decision of the Court of Appeal that Tayah are entitled to collect rents from tenants on their property situated at No. 78 Nnamdi Azikwe Street still subsists as against all the tenants, including the applicants.

The present applicants, who, like Adonis Stores, are tenants, neither took part in the interpleader proceedings in the High Court nor in the appeal in the Court of Appeal.

It is against this background that the applicants have come to this court seeking leave to be let in to appeal as parties interested against the decision of the Court of Appeal under Section 213(5) of the 1979 Constitution.They complain that although they were not given a hearing the order affects them adversely.

In the brief tiled on their behalf by Mr. T.O.G. Animashaun the following four issues have been formulated namely.:-

“(a) Whether the Applicants are interested persons capable of filing an appeal under section 213 (5) of the Constitution of the Federal Republic of Nigeria, 1979;

(b) Whether the Applicants, being entitled to appeal have shown good and substantial reasons and special circumstances to warrant this Honourable Court departing from its rules by granting them an enlargement of time within which to seek leave to appeal;

(c) Whether the Applicants have shown prima facie arguable case;

(d) Whether special circumstances exist to warrant the Supreme Court exercising its discretion to grant a stay of execution of the lower court’s judgment in favour of the Applicants.”

On issue (a) it was submitted both in the brief and oral arguments that the applicants are persons having an interest in the matter and are therefore entitled constitutionally by virtue of section 213(5) of the 1979 Constitution to a right of appeal to this court even though they were not parties in the original action. It was contended that the deposition in their affidavits to the effect that they are yearly tenants to LSDPC is sufficient to satisfy this court of their interest in the matter. This interest, it was further argued, is direct and not oblique and the decision of the Court of Appeal against which they seek to appeal is adverse to their interest. It was also argued that if the applicants are not allowed to appeal they would suffer permanent damage; that the applicants are aggrieved persons who have suffered a legal grievance and against whom the decision has been pronounced wrongfully depriving them of a legal right. Reliance was placed on Ubagu & Ors, v. Okachi & Ors. (1964) 1 All NLR 36 and Gwand & Ors v. Maidoya & Ors. (1990) 4 NWLR (Pt.l47) 805. It was finally emphasised that the interest of the applicants becomes even more obvious by reason of the quit notice served on them by Tayah after the decision of the Court of Appeal.

It is obvious to me that the fate of prayers (i), (iii) and (iv) is wholly dependent on the success or failure of prayer (ii) and I will, in the circumstance consider prayer (ii) first.

Mrs. T. Kehinde for the 2nd respondent filed a notice of preliminary objection to the application in which she contended that the applicants have no locus standi to bring the application as they are not parties interested as contemplated by section 213(5) of the Constitution because the issue before the lower court and the court below related to title of the property in question and not the right to occupy same. She further argued, by relying on Ikonne v. Commissioner of Police & Anor (1986) 4 NWLR (Pt.36) 473 at page 503, paragraphs c-h that section 213(5) of the Constitution requires an applicant to show legally recognisable interest before he can succeed. On locus standi learned counsel cited the recent Court of Appeal decision in Albion Construction Ltd. v. Rao Investment Ltd. and Anor (1992) 1 NWLR (Pt.219) 583 at page 593, paragraphs d-h. Learned Counsel finally argued that even a casual examination of the applicants’ proposed grounds of appeal shows clearly that the applicants have no interest in the matter, that they merely want to come in now to fight LSDPC’s battle.

Mr. K. Awodein, for third Respondent also filed a notice of preliminary objection on the same grounds as the objection by the 2nd Respondent. In his oral arguments he emphasised that the operative words in section 213(5) of the Constitution are “having an interest in the matter”. He submitted by reference to Ojogbo v. Itsekiri Communal land Trustees & Ors (1973) NSCC, Vol. 8, 661 at page 666 that because the applicants have sat by for too long, it is too late for them to now seek leave to appeal.

Now Section 213(5) of the Constitution of Nigeria, 1979, provides inter alia that” a right to appeal to the Supreme Court from the decision of the Court of Appeal in civil proceedings shall be exercisable at the instance of a party thereto, or with the leave of the Court of Appeal or the Supreme court at the instance of any other person having an interest in the matter.”

The above provision is in almost identical terms with the provision of section 222(a) of the same Constitution. The only difference is that whereas section 222(a) requires leave of the High Court or the Court of Appeal, section 213(5) requires leave of the Court of Appeal or the Supreme Court. And the provisions of both sections referred to above are almost identical with the provision of section 117(6)(a) of the 1963 Constitution under which the cases of Ozomagbo Ubagu & Ors. v. Chief Ozonechi Okachi & Ors.(1964) 1 All NLR 36, Sun Insurance Office Ltd. v. Victoria O. Ojemuyiwa (1965) 1 All NLR 1 and Jamakani Transport Ltd. v. Alhaji Kalla motion by British India General Insurance Co. Ltd. (1965) 1 All NLR. 77 were decided. It can thus be said that the provisions of sections 213(5) and 222(a) of the 1979 Constitution are in pari materia with the provision of section 117(6)(a) of the 1963 Constitution. All three cases were cited by Aniagolu, J.S.C., in Ikonne v. Commissioner of Police & Anor.(1986) 4 NWLR (Pt.36) 473, at page 479 paragraphs c-h, Indeed Aniagolu on the same page defines the interest required in section 222(a) (and by extension in section 213(5) as “a legally recognisable interest”. In his contribution in the Ikonne case, Karibi-Whyte, J.S,C., on page 503 paragraph (e) was more detailed when he said:

“The expression ‘person having interest’ has been defined as synonymous with ‘person aggrieved’, In re: Sidebotham Ex parte Sidebotham (1880) 14 Ch. D. at page 465. James L.J, said,

“A person aggrieved” must be a person who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something, or wrongfully refused him something, or wrongfully affected his title to something”

In Re: Read. Bowen & Co. Ex Parte Official Receiver (1887) 19 Q,B.D. at page 178, Lord Esher pointed out that ‘a person aggrieved’ includes “a person who has a genuine grievance because an order has been made which prejudicially affects his interest.

His Lordship went on in paragraph (9) of the same page to conclude that “the respondent” (and therefore in the instant case applicants)”must therefore show not only that he is a person interested but also the order made prejudicially affects his interests.”

See also the more recent case of Ademola v. Sodipo & Ors. (1992) 7 NWLR (Pt.253), 251-261 per Ogundare, J.S.C. This was a case in which one Akanni Osho Sodipo, who testified for the defendant at the trial sought and obtained leave to appeal to the Court of Appeal as an interested party. On appeal against this leave granted by the Court of Appeal, this court, per Ogundare, JSC” said on page 261, paragraph (d):

“… It cannot be doubted that the ‘person interested’ in the present proceedings stood by and allowed others to fight his battle, if he had any. He knew of the action and participated by giving evidence for one of the parties. He did not seek to be joined at that stage. After judgment had been given, he chose to show his solidarity with the defendant on whose side he ranged himself, by seeking to appeal against the judgment as a person having an interest in the matter”. This he could not do. He has, by his conduct, taken himself out of the ambit of section 222(a). He thus does not come within the contemplation of that section of the Constitution. With profound respect to the Justices of the Court below they were, clearly in error in granting him leave to appealant…”

I must hasten to add that although the facts in the Sodipo Case are not identical with the facts of the instant application, the legal principles are the same and the crucial questions for determination in the instant application are:-

Are the applicants persons having interest in the matter Do they have legally recognisable interest Are they aggrieved persons In other words have the applicants suffered a legal grievance Has the decision of the Court of Appeal which they seek leave of this court to appeal against wrongfully deprived them of something Or has the decision of the Court of Appeal “prejudicially” affected their interests.

To answer these questions it must be borne in mind that the applicants are tenants only; and that the issue that the court below was called upon to determine, as that court itself said on page 89 of the record, last paragraph is:-

“… Whether there has been acquisition by the predecessor in title of the 2nd claimant/respondent and whether after such acquisition the property in No. 78 Victoria Street, Lagos, now known as Nnamdi Azikiwe Street, has been vested in the 2nd claimant/respondent as to entitled (sic) to collect rent from the appellant Adonis Stores, as well as other tenants on No. 78 Nnamdi Azikwe Street”.

At the end of the day the court below held that “the 1st claimants/appellants are entitled to collect rents from tenants on their property situate at No. 78 Nnamdi Azikiwe Street. Lagos”.

This being the case I am of the firm view that the applicants do not have a legally recognisable interest in the matter. They are not persons aggrieved as they have not suffered any legal grievance, the decision of the Court of Appeal (which is merely that they should pay rent to Tayah) has not wrongfully refused them anything nor has it wrongfully affected their title to anything. Indeed they do not claim rule to the property, they being mere tenants. Nor has the decision prejudicially affected their interest. Their interest is merely to occupy as tenants with a corresponding duty to pay rent to whoever is adjudged to be entitled to collect rents due to the property.

This ought to dispose of the application but for the issue of lack of locus standi of the applicants raised by both learned counsel for the respondents in their notice of preliminary objection.

There is a long line of authorities on the subject of locus standi or standing and the general principle is that for a person to have locus standi either to institute an action or to prosecute an appeal he has to show that he has special interest; that the interest is not vague, or intangible, supposed or speculative or that it is not an interest which he shares with other members of society. He also has to show that such interest has been adversely affected by the act or omission which he seeks to challenge.The case of Senator Abraham Ade Adesana v. The President of the Federal Republic of Nigeria & Anor. (1981) 2 NCLR 358 sums up the Law. Fatayi-Williams CJN, (as he then was) said on page 372:

“The term locus standi denotes legal capacity to institute proceeding in a court of Law. It is used interchangeably with terms like ‘standing’ or ‘title to sue…”

And Bello JSC (as he then was) on page 380 defined the expression thus:

“Locus standi or ‘standing’ may be defined as the right of a party to appear and be heard on the question before any court or tribunal…”

Obaseki, J.S.C.(as he then was), on page 390 of the same report said:

“Locus standi or standing to sue is an aspect of justificiability and as such the problem of locus standi is surrounded by the same surrounded by the same complexities and vagaries inherent justiciability. The fundamental aspect or locus standi is that it focuses on the party seeking to get his complaint before the High Court not on the issue he wishes to have adjudicated.”

And Uwais, J.S.C., opined and warned thus:

“It is of paramount importance and indeed most desirable to encourage citizens to come to court in order to have the Constitution interpreted. However this is not to say, with respect, that meddlesome interlopers, professional litigants or the like should he encouraged to sue in matters that do not directly concern them. In my view, to do that is to open the floodgate to frivolous and vexatious proceedings. I believe that such latitude is capable of creating undesirable state of affairs.”

The facts of the Adesanya case briefly are that Abraham Adesanya, a Senator in the 2nd Republic, after losing a battle on the floor of the Senate, filed an action in the High Court against the President of the Federal Republic of Nigeria, and the Hon. Justice V. Ovie-Whiskey challenging the appointment of the latter by the former as Chairman of the Federal Electoral Commission and alleging that the appointment violated certain provisions of the Constitution.

The High Court granted him the reliefs he sought and on appeal the questions of his (Adesanya’s) locus standi to institute the action was raised for the first time. The question was then referred to the Supreme Court to answer. The reference was subsequently converted into an appeal and the Court unanimously held that Adesanya, in the peculiar circumstances of the case has no locus standi to institute the action in the first instance.

Applying all these principles to the instant application I am of the considered view that the applicants have no locus standi to appeal in this matter. Accordingly all the prayers in the application, lacking merit, are hereby refused and are dismissed with N1,000.00 costs to each of the Respondents.

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SC.25/1992