CHIEF ISMAILA AJASA ONIFADE & ORS v. ISHAU OLORUNFUNMI (2014)

CHIEF ISMAILA AJASA ONIFADE & ORS v. ISHAU OLORUNFUNMI

(2014)LCN/7206(CA)

In The Court of Appeal of Nigeria

On Friday, the 16th day of May, 2014

CA/L/662/2012

Justice

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria

SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria

Between

In an application by:

1. CHIEF ISMAILA AJASA ONIFADE
2. CHIEF GEORGE EGBETOKUN
3. ALHAJI WAHEED TORIOLA
4. CHIEF SEGUN ADEGBOLA HAMBURGER
5. MR. AKEEM MUJADAS
(For themselves and on behalf of Community Development Association of Olorunfunmi Madarikan Ikosi Idimu)Appellant(s)

AND

1. ISHAU OLORUNFUNMI
2. MUDASHIRU OLORUNFUNMI
3. MUKANDAS OLORUNFUNMI
(For themselves and on behalf of Olorunfunmi Madarikan family of Ikosi Idimu)

1. OBA WAHAB AYINDE IYAPE
(For himself and on behalf of Isheri Olorin People)

2. ALHAJI OSENI IYAPE
3. ALHAJI NURUDEEN IYAPE
4. RAUFU IYEWURE
5. ALHAJI MURUINA IYEWURE
6. AMIDA LASHILO
7. YISA FALAKE
(For themselves and on behalf of Abisiwa Family of Idimu)Respondent(s)

RATIO

THE POSITION OF THE LAW ON THE RIGHT TO APPEAL BY AN INTERESTED PARTY

Now on the issue whether the applicants should be granted leave of this court to appeal as interested parties. Section 243 of the Constitution of the Federal Republic of Nigeria provides for the right to appeal by an interested party and it provides thus:-
Section 243- “Any right of appeal to the Court of Appeal from the decisions of the Federal High Court or a High Court conferred by this constitution shall be:-
(a) Exercisable in the case of civil proceedings at the instance of a party thereto, or with the leave of the Federal High Court or a High Court or the Court of Appeal at the instance of any other person having an interest in the matter, and in the case of criminal proceedings at the instance of the accused person or, subject to the provisions of this constitution and any powers conferred upon the Attorney General of the Federation or the Attorney General of a state to take over and continue or to discontinue such proceedings, at the instance of such other authorities as may be prescribed;
(b) exercised in accordance with any Act of the National Assembly and rules of court for the time being in force regulating the powers, practice and procedure of the Court of Appeal.”
The operative phrase here for the purpose of this application is “at the instance of any other person having an interest in the matter”. In other words any other person who will be affected or is likely to be affected by the outcome of a matter before a court. A stakeholder in a matter before the court and this is usually referred to as “an interested party” or “person interested”. In IJELU & ORS v. LAGOS STATE DEVELOPMENT AND PROPERTY CORPORATION & ORS (1992) NWLR (Pt. 266) 414 the Supreme Court posited that to qualify as persons interested in the matter within the meaning of that phrase in Section 213(5) of the 1979 constitution (in pari materia with Section 243 of the 1999 constitution) the applicants must show that they have a legal interest in the subject matter of the dispute and might therefore have been a party to the suit.
In JIKANTORO & ORS v. DANTORO & ORS (2004) 13 NWLR (Pt. 889) OR (2004) 5 SC (Pt 1) 1.
Thus court per Musdapher, JCA (as he then was) held inter alia that:-
“A person having interest has been judicially defined as including a person affected or likely to be affected or aggrieved or likely to be aggrieved. See HARRY AKANDE v. GENERAL ELECTRIC & OTHERS (1979) 4 SC 775. In Re GENERAL ELECTRIC CO. OF USA (NIG) (1979) 3 – 4 SC 115 at 125; MBANU v. MBANU (1961) 2 SCNLR 305, (1961) 4 ALL NLR 652. It is noteworthy that a person aggrieved or a person having an interest means a person against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully affected his title to something. In Re MBAMALU supra. It is stressed that on application for leave to appeal as an interested party must show that the decision has caused him some grief, loss, disadvantage or affected his title, rights or positions.”
See also, EDE v. NWIDENYI (1988) 12 SC (P73) 12; IJELU v. LSPDC supra. OWENA BANK v. NSE LTD. (1997) 8 NWLR (Pt. 515). PER OSEJI, J.C.A.

THE TEST TO DETERMINE WHETHER AN INTERESTED PARTY CAN BE GRANTED LEAVE TO APPEAL

The test to determine whether an interested party can be granted leave to appeal is whether such a person could have been joined as a party to the suit. See RE MADAKI (1990) 4 NWLR (Pt. 143) 266. See also OKONKWO v NGIGE (2006) 8 NWLR (Pt. 981) 119 where this court held that, a party seeking leave to appeal against a decision of court as an interested party must show:-
(a) That a right of appeal has enured him.
(b) Such an applicant not being a party to the decision against which leave to appeal is sought must show that the decision has caused him grief, loss, position or disadvantage. PER OSEJI, J.C.A.

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A. (Delivering the lead Ruling): By a motion on notice dated and filed in this court on the 30th April 2013, the applicants herein prayed for the following orders:-
(A) An order extending the time within which the applicants may seek leave to appeal as interested parties against the judgment delivered on the 15th day of May, 2012 suit No. ID/488/80. Honourable Justice Lawal Akapo of High Court of Lagos State No. 46, TBS, Lagos.
(B) An order granting leave to the applicants to appeal as interested parties against the aforesaid judgment.
(C) An order granting extension of time within which to file the Notice of Appeal in the aforesaid judgment.
(D) An order of this Honourable court for interlocutory injunction restraining the claimant/1st Respondent, his agents, servants, privies or anybody claiming title through him from leasing, selling, assigning, transferring, altering, demolishing, locking, harassing any occupier or howsoever creating any third party interest on the parcels of land occupied by the Appellants/Applicants within the judgment of Honourable Justice Lawal Akapo of High Court No 45, TBS, Lagos delivered on the 15th day of May, 2012 pending the determination of this application and appeal.
Grounds for the application were also set out in the said application which is also supported by a 32 paragraph affidavit. Attached to the affidavit are the following documents:-
(1) Exhibit CH – Certified copy of the judgment of the trial court
(2) Exhibit CH1 – Copy of a Public Notice.
(3) Exhibit CH2 (a-m) Pictures said to have been taken at the scene.
(4) Exhibit CH3 (a-e) PHCN bills of some of the applicants.
The 1st Respondent in opposing the application filed a counter affidavit of 7 paragraphs dated 21-11-13.
Written addresses were subsequently ordered by this court to be filed and served. At the hearing of the application on the 5-3-2014 parties duly adopted and relied on their respective written addresses.
The Applicants written address is dated and filed on 21-11-2013. The appellants and other Respondents neither filed counter affidavit or written address. The applicants submitted one issue for determination in their written address; to wit:-
“Whether considering the circumstances of this suit, it will not be proper for the Honourable court to grant leave to the applicants to appeal as interested parties in this suit.”
Dwelling on the said issue learned counsel for the applicants referred to Section 243(a) of the 1999 Constitution (as amended) and Order 7 Rule 2 of the Court of Appeal Rules 2011 to submit that the decision of the trial court affected the status of the applicants and their direct legal interests in the subject matter of this suit were grossly affected. He referred to paragraph 3 to 25 of the affidavit in support which he said explains the harassment, intimidation, and destruction of the applicant’s property by the agents of the Respondent. He added that Exhibits CH to CH3 shows the level of damages caused by the thugs and agents of the Respondent. Reliance was placed on the following authorities:-
OGUNKUNLE & ORS v. REGD TRUSTEES OF ETERNAL SACRED ORDER OF THE CHERUBIM AND SERAPHIM & ORS (2001) FWLR (Pt. 62) 1866 at 1873-4; and HRN GAMBARI v. ALHAJI TUKUR (2004) ALL FWLR (Pt. 239) 923 at 929 and OWENA BANK (NIG) PLC v. NSE LTD (1997) 8 NWLR (Pt. 515) 1 at 19. Also referred to is the case 6f OMATHA INVESTMENT & PROPERTIES LTD v. ALHAJI AWOSANYA & ORS (2005) ALL FWLR (Pt. 259) 2011 at 2082 where the applicant was in quiet enjoyment of his premises until the execution of a judgment he knew nothing about between different parties, his application for leave to appeal as an interested party was considered in the light of having an interest in the matter. He added that the applicants fell into the same category and were not in the know about the suit at the trial court but only discovered one day that the Respondents agent pasted a notice to contact them for payment for the land they occupy.
Also citing the case of ENYIBROS FOOD PROCESSSING & ANOR v. NDIC & ANOR (2008) 3 SC (Pt. 11) 173 at 193 he submitted that this court has the inherent jurisdiction to grant this application because the applicants have proved that they have genuine and legal interest in the suit.
For the 1st Respondent, the issue raised for determination in his written address is:-
“Whether the Applicants should be granted leave of court to appeal as interested parties.”
However, by way of preliminary argument it was submitted that the entire application is bad in law and therefore incompetent because the grounds for the application are not legal grounds as contemplated by Order 7 Rule 1 of the Court of Appeal Rules 2011 but rather consists of evidence and arguments – and the said grounds as well as the whole application bereft of grounds should be struck out.
Also referring to Prayer 1 in the Applicants application, he submitted that they misconceived the law in seeking an extension of time within which to bring an application for leave to appeal because neither the constitution, the Court of Appeal Act or Court of Appeal Rules prescribed a period within which an interested party can bring an application for leave to appeal.
Therefore, he argued, after a party has obtained leave to appeal as an interested party, he is required to appeal within three months as provided by Section 25 of the Court of Appeal act and it is only where he fails to do so that he can apply for extension of time to appeal. He relied on the following cases. REGISTERED TRUSTEES OF CAC v. UFIEM (1998) 10 NWLR (Pt. 569) PAGE ?; RE MADAKI (1990) 4 NWLR (Pt. 143) 266 and OWENA BANK v. NSE LTD (1997) 8 NWLR (Pt. 515) 1
He then urges this court to refuse the prayer 1 accordingly. As regards the 2nd prayer in the application, learned counsel submitted that based on the affidavit evidence before the court, the relief therein is not available to the applicants. This is because, by law, before a person who is not a party can be allowed to appeal under the provisions of Section 243 (a) of the Constitution, he must show that he is interested or aggrieved by the decision sought to be appealed against vide CPC v. NYAKO (2011) 5 – 7 (Pt. 11) NJSC 158 at 187 – 188.
He added that such interest must be shown from the Record of Appeal and not from material garnered from the Affidavit in Support of the Application. Thus the applicants have a duty to show their interest from the Record of Appeal before the court vide OMOTESHO v. ABDULLAHI (NIG) PLC (2008) 2 NWLR (Pt. 1072) 525 at 543.
It was further submitted that an applicant seeking leave of court to appeal as an interested party must make a detailed deposition in his affidavit to show:-
(a) His interest in the matter
(b) Why he was not a party in the trial court
(c) Good reasons for delay in filing the application.
Vide ALHAJI WAZIRI v. IBRAHIM GUMEL (2012) 3 MJSC (Pt. 1) 55 at 87- 88.
Referring to paragraphs 6, 7, 8, 11 and 15 of the applicant’s affidavit in support, it was submitted that they consist of legal arguments, conclusions and opinions while paragraphs 9, 10, 12, 13, 14, 17, 18, 18, 19 and 20 are depositions not within the knowledge of the deponent and the source of the information was not stated. The said paragraphs were urged to be struck out for offending Section 115 of the Evidence Act.
With Respect to Prayer 3 in the applicant’s application, it was submitted that, for the reasons canvassed earlier while addressing Prayer 1, this prayer is premature and incompetent and should be refused.
As regards Prayer 4 which is for an order of interlocutory injunction against the 1st Respondent, learned counsel submitted that, the said prayer is premature and therefore incompetent because on the authority of FUNDUK ENGINEERING v. MACARTHUR & SONS (1996) 7 NWLR (Pt. 459) 183 a person wishing to appeal as an interested party should as a first step bring an application for leave to appeal as a distinct and separate application. It is after surmounting the hurdle and obtaining leave to appeal that he can then seek any other relief including an order of injunction.
He added that an applicant for an order of interlocutory injunction must state the area of land over which the injunction will lie and this is lacking in the present application.
The relevant portions of the applicants reply on point’s law will be addressed where necessary in the course of this ruling.
I have duly considered the parties affidavit and counter affidavit as well as their written addresses in support thereof.
I will first deal with the preliminary points raised in the first Respondents written address. The first one is to the effect that the grounds for the application as endorsed therein are not legal grounds as contemplated by Order 7 Rule 1 of the Court of Appeal Rules 2011, but rather consist of evidence and arguments.
The said Order 7 Rule 1 is very clear and unambiguous and it read thus:-
“Every application to the court shall be by notice of motion supported by affidavit and shall state the Rule under which it is brought and the ground for the relief sought”.
What I can glean from the above provision is that an application shall amongst other requirements state the grounds for the relief sought. It did not specify whether such grounds should be legal or facts. To my mind therefore, what is of essence is that the application shall state grounds whether of law or facts to justify the grant of such application and also to put the court as well as the respondent in the know firsthand on the reasons why the reliefs in the motion paper is being sought.

The issue of the said application being incompetent because the grounds stated therein are not legal grounds thereof does not arise. The ground so stated therein consists of 12 paragraphs and I believe that paragraphs 1 – 6 suffices to meet the requirement of Order 7 Rule 1, granted that the other paragraphs are deemed superfluous but I have not so concluded. The points so raised by the 1st Respondent is therefore unwarranted.
The 1st Respondent had also in the written address urged the court to strike out the following paragraphs for offending Section 115 of the Evidence Act. They are paragraphs 6, 7, 8, 11, 15 for being legal arguments, conclusions and opinions while paragraphs 9, 10, 12, 13, 14, 17, 18, 19 and 20 are information not within the knowledge of the deponent and the source of the information is not deposed to.
I have read the said paragraphs and I am however of the view that paragraphs 6, 7, 8, 11 and 15 are not defective by way of legal arguments opinions or conclusions. I therefore hold that they do not offend Section 115 of the Evidence Act. However, paragraphs 9, 11, 12 are 13 found to be defective having been deposed to by one Patrick Ekugum a lawyer in the chambers of the applicants’ counsel. He did not state the source, venue and time and circumstance of the facts deposed to, not being one of the applicants. It offends Section 115 of the Evidence Act 2011 and they are accordingly discountenanced.
Now on the issue whether the applicants should be granted leave of this court to appeal as interested parties. Section 243 of the Constitution of the Federal Republic of Nigeria provides for the right to appeal by an interested party and it provides thus:-
Section 243- “Any right of appeal to the Court of Appeal from the decisions of the Federal High Court or a High Court conferred by this constitution shall be:-
(a) Exercisable in the case of civil proceedings at the instance of a party thereto, or with the leave of the Federal High Court or a High Court or the Court of Appeal at the instance of any other person having an interest in the matter, and in the case of criminal proceedings at the instance of the accused person or, subject to the provisions of this constitution and any powers conferred upon the Attorney General of the Federation or the Attorney General of a state to take over and continue or to discontinue such proceedings, at the instance of such other authorities as may be prescribed;
(b) exercised in accordance with any Act of the National Assembly and rules of court for the time being in force regulating the powers, practice and procedure of the Court of Appeal.”
The operative phrase here for the purpose of this application is “at the instance of any other person having an interest in the matter”. In other words any other person who will be affected or is likely to be affected by the outcome of a matter before a court. A stakeholder in a matter before the court and this is usually referred to as “an interested party” or “person interested”. In IJELU & ORS v. LAGOS STATE DEVELOPMENT AND PROPERTY CORPORATION & ORS (1992) NWLR (Pt. 266) 414 the Supreme Court posited that to qualify as persons interested in the matter within the meaning of that phrase in Section 213(5) of the 1979 constitution (in pari materia with Section 243 of the 1999 constitution) the applicants must show that they have a legal interest in the subject matter of the dispute and might therefore have been a party to the suit.
In JIKANTORO & ORS v. DANTORO & ORS (2004) 13 NWLR (Pt. 889) OR (2004) 5 SC (Pt 1) 1.
Thus court per Musdapher, JCA (as he then was) held inter alia that:-
“A person having interest has been judicially defined as including a person affected or likely to be affected or aggrieved or likely to be aggrieved. See HARRY AKANDE v. GENERAL ELECTRIC & OTHERS (1979) 4 SC 775. In Re GENERAL ELECTRIC CO. OF USA (NIG) (1979) 3 – 4 SC 115 at 125; MBANU v. MBANU (1961) 2 SCNLR 305, (1961) 4 ALL NLR 652. It is noteworthy that a person aggrieved or a person having an interest means a person against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully affected his title to something. In Re MBAMALU supra. It is stressed that on application for leave to appeal as an interested party must show that the decision has caused him some grief, loss, disadvantage or affected his title, rights or positions.”
See also, EDE v. NWIDENYI (1988) 12 SC (P73) 12; IJELU v. LSPDC supra. OWENA BANK v. NSE LTD. (1997) 8 NWLR (Pt. 515).

In the instant case the applicants had deposed in paragraphs 3, 4, 5, 6, 15, 16, 17, 24, 25, 26, 27 and 31 as follows:-
(1) On the 15th of May 2012 the High Court of Justice of Lagos State by its judgment delivered by His Lordship the Honourable Justice Lawal Akapo of High Court No: 46, TBS, Lagos found for the Claimant now the 1st Respondent in this appeal.
(2) Attached as “EXHIBIT CH” is the Certified True Copy of the said judgment.
(3) That the applicants are the Representatives of the Community Development Associations who are resident on the land which is the subject matter of the suit at the lower court.
(4) That throughout the period of the suit at the High Court, the Claimant/1st Respondent did not deem it fit to join the Applicants as Defendants in the suit at the Lower Court.
(5) That the Applicants are desirable, proper and necessary parties to this suit that the Claimant/1st Respondent supposed to have joined as the Defendants at the Lower Court.
(6) That the Applicants are affected by the judgment of the Lower Court delivered on 15th May 2012 where the Claimant refused to join them.
(7) That unless an order of interlocutory injunction is granted the Claimant/1st Respondent would dissipate and make a transfer of the subject matter of the appeal to an unwary third party and thereby rendering the appeal a mere academic exercise.
(8) I was told by Olufemi Ajibose Esq. of Counsel on Friday 26th day of April, 2012 in the office at about 4pm and I verily believe the same to be true that:-
(i) The notice and grounds of appeal raise substantial and weighty issues on recondite points of law which will go a long way to expand the frontier of our laws.
(ii) The said appeal has a bright chance of success.
(iii) The res of the judgment of the Lower Court must be protected for the sake of Justice.
(iv) That this Honourbale Court has the power to grant leave to the Applicants to appeal as interested parties the judgment of the Lower court.
(9) The Applicants told me in our Chambers on the same day at about 5p.m. in our Chambers and I believe the same to be true: –
(i) That they are under unjustifiable pressure and perpetual fear if they are not granted the Leave of this Court of Appeal as interested party.
(ii) That they would suffer an irreparable damage if the Claimant/1st Respondent is allowed to execute the judgment of the Honourbale Court unfairly on them as the said Respondent had perfected plans to transfer the subject of the appeal to a third party.
(iii) That the Respondent would not be prejudiced by this applicant.
(iv) That they are prepared to prosecute the appeal diligently.
(10) The applicants told me during the said conference and sincerely believe the same to be true that they are prepared to indemnify the Respondents in damages in the unlikely event that it is found out at the end of the day this application ought to have been granted in the first place.
(11) I verily believe that it will be in the interest of Justice to grant these applications which is not calculated to deprive the Claimant/1st Respondent of the fruit of the judgment in this suit but intended to allow the interested parties who are living on the land to appeal by leave of this Honourable Court and preserve the subject of the litigation pending the determination of the appeal.
(12) That it will be in the interest of Justice that these applications be granted so that the Applicant’s Constitutional right of Appeal be leave of this Honourable Court will not be stultified.
The 1st Respondent also in a counter affidavit filed on 21/11/2013 deposed in paragraph 5(a-l) as follows: –
(a) That paragraphs 5, 6, 7, 8, 9, 11, 13-32 are denied.
(b) That the 1st Respondent and his family by the Judgment delivered on the 15th of May, 2012 by Hon. Justice Lawal Akapo of the High Court of Lagos State were declared owners of a vast parcel of land situate, lying and being at old Isheri forming common boundaries with Egbe Village, Ignado Village up to Meshindi Village with another portion of Isheri land farmed by Abisiwa and more particularly described and verged Red on Plan No: GF/1103A dated 17th of November, 1981 drawn by G. F. Okusanya Licensed Surveyor.
(c) That in response to paragraphs 3-7 the Applicants have not shown their interest in the land adjudged to be that of the 1st Respondent and his family. There is nothing to show what title they have to the land.
(d) That the Applicants were not on any portion of the land in dispute at the commencement of the action at the Lower Court and the Appellants were the ones who trespassed on to the land and notices were pasted all over the land to warn trespassers which said notices the Appellants admitted knowledge of, in their evidence at the Lower Court and the Lower Court also found this as a fact in the judgment.
(e) The case at the lower court was about title to communal land. The Applicants never laid title to the land at the lower court and therefore they could not have been joined as parties.
(f) That the 1st Respondent and his family being law abiding citizens informed the public that his family got judgment over the parcel of land in dispute by pasting notices that had the names of his Representative and Solicitors inscribed thereon for enquires but the Applicants did nothing since May 2012.
(g) In response to paragraphs 8-13 of the affidavit in support, the Applicants are just whipping up sentiments because the Isheri Olofin Community is within Lagos State and there are Laws governing the State.
(h) That the 1st Respondent vehemently denies that he hired agents and/or thugs to unleash terror on the Applicants or any other person within the parcel of land declared as theirs and at no time did he give instructions but the Applicants or any persons whosoever be chased out of their houses or that their houses be destroyed.
(i) That the 1st Respondent was the one being harassed by agents of the Appellants and unknown men who made death threats to his life to an extent that he had to seek Police protection for the safety of his life and household.
(j) It is not true that Isheri Olofin is a lawless community where cutlass and dangerous weapons are freely used because there are law enforcement agencies in the area.
(k) That Exhibits CH2A-M are strange to the 1st Respondent because nothing of such took place to his knowledge and he did not at anything instruct any agent and/or thugs to destroy properties in a community where he is the paramount ruler neither has he being charged to Court in respect of any criminal activity.
(l) That in response to paragraphs 18-20 the Applicants would have taken steps to redress such acts if anything of that nature had happened to any of them because they live in an organized society. Exhibits CH3A-E are not attached to the said affidavit.
I find paragraphs 5, 6, 15 and 25 of the applicants affidavit in support weighty and they are not controverted or challenged in the 1st respondents affidavit in which case they are deem to be true and correct. See ALAGBE v. ABIMBOLA (1978) 1 SC 39, CCB (NIG) PLC v. OZOBU (1998) 3 NWLR (Pt. 54) 290 and BUHARI v. OBASANJO (2004) 114 LRCN 2723 at 2762.
The said paragraphs show that the applicants are on the land in dispute and were not joined as defendants in the lower court even though they will be affected by the outcome of the judgment therefrom. In the circumstance the applicant can be said to have been subjected to grief, loss and disadvantage sequel to the judgment of the lower court which they now seek to address by seeking leave to appeal in accordance with their right to do so by virtue of Section 243(a) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
Learned counsel for the 1st Respondent had also challenged pray (1) and (3) in the application on the ground that they seek for extension of time within which to bring an application for leave to appeal as interested parties and to file Notice of Appeal contrary to Section 243 (b) of the 1999 Constitution.
The argument by learned counsel would have held sway of the applicants had applied for leave to appeal within the time stipulated by Section 25 of the Court of Appeal Act 2004. But having been out of the statutory period of three months, they must comply with the rules of this court by seeking for extension of time to apply for leave to appeal as interested parties, anything to the contrary will invalidate the notice of appeal. See OWENA BANK v. N.S.E LTD. (1997) 8 NWLR (Pt. 515) 1. It was also held therein that the prayer for extension of time is a vital application once a party is out of time to appeal. A person interested in a matter has the right to appeal under Section 243(a) of the 1999 Constitution except for the condition that it shall be with leave of the court. Thus where this right is not exercised within the period prescribed by the relevant statute, an interested party in an appeal must first apply for extension of time to do so.

On the prayer for interlocutory injunction, I cannot but agree with learned counsel for the 1st Respondent that under the present scenario, it is premature, given the fact that no appeal by the applicants is presently before this court. I also agree with him that a person wishing to appeal as an interested party should first bring an application for leave to appeal separately and if granted and the Notice of Appeal is properly filed in court before he can explore the possibility of an application for interlocutory injunction which ordinarily cannot be entertained in the absence of an appeal.
By the provisions of Order 1 Rule 5 of the Court of Appeal rules 2011, an Appeal means the filing of Notice of Appeal and in the instant case, until the prayer is granted by this court for extension of time to apply for leave to appeal as an interested party and leave to so appeal, the prayer for interlocutory injunction becomes premature and out of place. Accordingly the applicants prayer for interlocutory injunction is hereby struck out for being premature. On the whole this court deems it expedient to exercise its discretion in favour of granting the applicants prayer to appeal as interested parties.
It is therefore ordered as follows: –
(1) Time is hereby extended by 14 days from today, within which the Applicants may seek leave to appeal as interested parties against the judgment of the Lagos State High court delivered by Lawal Akapo J. on the 15th day of May, 2012 in Suit No: ID/488/80.
(2) The Applicants are hereby granted the leave of this court to appeal against the said judgment.
(3) The Applicants are granted 14 days from today within which to file their Notice of Appeal against the said judgment.
Parties to bear their costs.

JOSEPH SHAGBAOR IKYEGH. J.C.A.: I had the honour of reading in draft the Ruling prepared by my learned brother, SAMUEL CHUKWUDUMEBI OSEJI, J.C.A., with which I agree with nothing extra to add.

CHINWE EUGENIA IYIZOBA, J.C.A.: I read before now the ruling just delivered by my learned brother, SAMUEL CHUKWUDUMEBI OSEJI JCA. I agree with the reasoning and conclusions. His Lordship has dealt fully with the issues raised in the appeal. I agree that the applicant’s prayer for interlocutory injunction cannot arise until his application for extension of time to apply for leave to appeal as an interested party and leave to so appeal is granted. I also strike out the application for interlocutory injunction and grant the application to appeal as an interested party. I abide by the consequential orders in the lead judgment including the order as to costs.
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Appearances

A. O. Adewole – Appellants
O. Ajiboso with P. Ekugum – ApplicantsFor Appellant

AND

G. M. O. Oguntade (SAN) with Mrs. Bola Awoyomi and T. J. Odesola – 1st Respondent
O. Sobowale for 2nd – 7th RespondentsFor Respondent