Captain Hakeem Oladapo Niyiotiki & Anor V. Alhaji Momoh Jimoh Bahjeson (2001)

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MUNTAKA-COOMMASSIE, J.C.A. 

This is an application on notice pursuant to section 6 (6) (a) and (b); section 243 of the Constitution of the Federal Republic of Nigeria 1999, section 16 of the Court of Appeal Act, 1976, and Order 3 rule 3 (1) and (4) of the Court of Appeal Rules, 1981.

The applicant is seeking for leave to be joined as an appellant in this appeal pending before this court. Learned Counsel for the applicant filed a seven paragraph affidavit, in support of the application and relied on all the paragraphs, especially paragraphs 7 – 6 thereof. Mrs. J. O. Adesina, learned Counsel for the respondent told the court there is nothing objectionable in the application and agreed that the application would be granted.

Mr. O. I. Olorundare Learned Counsel for the 1st respondent, indicated his objection on points of law.

In moving the motion Agoro Esq. contended that they are tenants in possession therefore, they have interest in the matter. He submitted that as an interested party they ought to be joined in this suit. They relied on the case of Re: Yinka Folawiyo & Sons Ltd. (1991) 7 NWLR (Pt. 202) 237 at 240. He then urged this court to grant their application.

Learned Counsel for the respondent Mr. Olorundare, argued that all conditions for the grant have not been met. The applicant, counsel submitted, ought to come in terms of Trinity Prayers. Learned counsel further submitted that since the applicant is out of time, before a court of law can grant him leave as an interested party to be joined, he must come with three prayers. He relied on the following two authorities:-

(a) Agaka v. Oladeji (2000) 13 NWLR(Pt. 683)p 1351144- B 145 and

(b) Owena Bank Plc v. Nigeria Stock Exchange (1997) 8 NWLR (Pt.515) 1/14.

He concluded that the application is incompetent as the three prayers are not being sought. I have considered the application and the affidavit in support. I have equally digested the submissions of both Learned Counsel along with the authorities cited therein.

The law, as of now, is that a party seeking to appeal, where leave to appeal is necessary, as in application to appeal as interested party and he is late in filing his application, he must seek three reliefs, namely:

(a) extension of time within which to seek leave to appeal;

(b) leave to appeal; and

(c) enlargement of time within which to appeal.

See Owena Bank (Nig.) Plc. v. N.S.E. Ltd. cited by the respondent.

I also entirely agree with the learned counsel for the respondent that if any of the three prayers is missing the application is incompetent and must be struck out. See also Funduk Engineer Ltd.. v. Macarthur in Re: Madaki (1996) 7 NWLR (Pt.459) 153; Iroegbu v. Okwordu (1990) 6 NWLR (Pt. 159) 643;

However, the application before us is quite different from the application for extension of time to appeal. The applicant in this court is merely seeking leave to be joined in the appeal pending in this court as an interested person. He is coming within the principle of joinder. It is agreed that prior to this application the applicant was not a party to the appeal before us. It is now that he is seeking to be joined as an appellant.

It is pertinent at this stage to look into the affidavit in order to discover whether or not it is actually an interested applicant. This is so, because once it can show that the applicant is an interested party then this court would have the power to grant the application.

After reading paragraphs 7, 8, 9, 10, 11 and 12 of the affidavit in support, I was left in no doubt that the applicant showed that he is a tenant while the 1st appellant is its Landlord.

In a situation such as this, where the applicant is able to show that it is a tenant in occupation with interest in the matter, the court has jurisdiction to order for the joinder. Moreover, where an applicant, as the one at hand, is qualified to be called a bona fide tenant with possessory rights for value without notice of any other interest other than that of the appellant now respondent who gave the applicant possession the law allows the court to order that he be joined as a party.

It is clear that the respondent is regarded at least, as of now, as the Landlord in respect of the property in dispute, the applicant therefore as a tenant possessed

(a) the right to ask to be joined. The law, as I understand it, is that it is necessary for the court to join a tenant as party to an action in which his Landlord is already a party so as to enable the tenant/applicant protect his possessory right which is quite different from the Landlord’s right. I rely on the case cited by the applicant, namely:

In Re, Yinka Folawiyo & Sans Ltd. (Supra) at P 244-245 per Sulu Gambari J.CA, as he then was.

That being the case, and since our attention has not been drawn to any Supreme Court’s decision overruling the Folawiyo’s case supra, the law must remain as was expounded by this court. The objection by the learned respondent’s counsel is therefore misconceived and is hereby over-ruled. The application for leave for the applicant to be joined as an interested party is therefore in order and is hereby granted as prayed. The applicant Besse Oil And Services Ltd. is granted leave to be joined. They are joined as the 3rd appellant in this appeal which is pending.

Application granted.

Other Citations: (2001)LCN/0935(CA)