SUMMERSET CONTINENTAL HOTEL LIMITED & ORS v. MRS. OLAMIDE O. OGUNGBE & ORS
(2019)LCN/12868(CA)
In The Court of Appeal of Nigeria
On Monday, the 18th day of March, 2019
CA/L/523M/2014(R)
RATIO
APPEAL: WHETHER A PERSON WHO IS NOT PARTY TO THE TRIAL CAN SUE
“…Thus where a party is not clearly aggrieved by the order of a trial Court itself but by the consequence which arises from it, such a party is not entitled to appeal having not shown a legal grievance. The interest must be genuine and shown a legally recognizable interest in respect of a decision which is prejudicially affected. OMOTESHO V ABDULLAHI (SUPRA), EDE V NWIDENYI, IN RE UGADU (1988) 1 NWLR (93) 189.” PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
APPEAL: WHAT MAKES AN APPLICANT QUALIFIED TO APPEAL
“In ACN & ORS V LABOUR PARTY & ORS (2012) LPELR – 8003 (CA), this Court held thus on what an applicant must show to qualify as a person interested in an appeal: ‘A person who was not a party at the lower Court but seeks to appeal as an interested party under Section 243(1) (a) of the Constitution of the Federal Republic of Nigeria, 1999 should exhibit on the record his interest and show that he is aggrieved by the decision he intends to appeal against.’…The Supreme Court in OWENA BANK PLC V NSE LTD (1997) LPELR ? 2843 (SC) held thus:’…See D.D. Ikonne v. Commissioner of Police, Imo State & Anor. (1986) 4 NWLR (Pt. 36) 473 at 503 (per Karibi-Whyte, JSC). Wherein it was held that for an applicant to be entitled to appeal as ‘a person having an interest in the matter’ under Section 222(a) of 1979 Constitution, he must ‘show not only that he is a person interested but also that the Order made prejudicially affects his interest.’ See also In Re Ijelu (1992) 9 NWLR (Pt.266) 414 and IN RE UGADU .(1988) 5 NWLR (Pt. 93) 189.'” PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
JUSTICES
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
Between
1. SUMMERSET CONTINENTAL HOTEL LTD
2. BABATUNDE ADENIYI ADEJUWON
3. CHIAGOZIE HILARY-NWOKONKO
4. MEGAT AND PARTNERS ESTATE LTD Appellant(s)
AND
1. MRS. OLAMIDE O. OGUNGBE
2. THE HONOURABLE MINISTER FOR WORKS, HOUSING & URBAN DEVELOPMENT
3. THE SECRETARY, IMPLEMENTATION COMMITTEE ON ALIENATION OF FEDERAL GOVERNMENT LANDED PROPERTY
4. ATTORNEY GENERAL OF THE FEDERATION Respondent(s)
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Lead Ruling):
This application was filed on 21/9/2015 and brought pursuant to Section 243(a) of the 1999 Constitution (as amended) seeking for:
1. Extension of time within which to seek leave to appeal as interested persons against the judgment of the Federal High Court, Lagos coram ABANG, J delivered on the 28/2/2014 in Suit No: FHC/L/CS/424/2010.
2. Leave to appeal to the Court of Appeal against the judgment as interested persons.
3. Extension of time within which to appeal.
4. An order of injunction pending appeal restraining the Plaintiff/Respondent from entering the land known as Plot 5A, Sasegbon Street, GRA, Ikeja Lagos and/or from enforcing the judgment.
5. An order of injunction pending appeal restraining the Plaintiff/Respondent from giving effect to the judgment.
6. Staying the execution of and/or suspending the execution of the judgment pending the hearing and determination of this application and/or appeal.
7. An order staying all enforcement proceedings pending the hearing and determination of this application and/or appeal.
8. And for such further or other orders as the Court may deem fit to make in the circumstance.
The application is brought based on the following grounds:
a. The Federal High Court, sitting at Lagos had on 28th February, 2014 delivered judgment in SUIT NO. FHC/L/CS/424/2010 MRS. OLAMIDE O. OGUNGBE V. THE HONOURABLE MINISTER FOR WORKS, HOUSING & URBAN DEVELOPMENT AND 2 OTHERS which among other things severely affects the Applicants.
b. In the said judgment, the lower Court inter alia
i. Declared the sale of the property located at 5A, Sasegbon Street, GRA, Ikeja null and void.
ii. Ordered that possession of what is on the land known as 5A, Sasegbon Street, GRA, Ikeja be given to the Plaintiff/Respondent.
iii. Ordered that anyone occupying the property located at 5A, Sasegbon Street, GRA, Ikeja be ejected.
c. The Applicants were not parties in the said suit filed by the Plaintiff/Respondent.
d. It was clear from the state of the pleadings before the Court that title had passed to third parties before the commencement of the suit namely Aade Industrial & Investments Co. Ltd, the predecessor in title of the Applicants.
e. An application for joinder of the predecessor in title of the Applicants was made by the 1st and 2nd Defendants/Respondents which was refused by the lower Court on the ground that the issues can be resolved without the said Aade Industrial and Investments Co. Ltd.
f. Aade industrial & investments Co. Ltd (the Predecessor in title of the Applicants) was the holder of the Certificate of Occupancy issued by the Federal Government over the property known as 5A, Sasegbon Street, GRA, Ikeja, Lagos (property) dated 11th May, 2009 and registered as No. 53 at page 53 in volume 124 at the Federal Land registry, Ikoyi, Lagos for a term of 99 years commencing from 5th February, 2007.
g. The Aade industrial & investments Co. Ltd assigned the unexpired residue in the property to the 1st Applicant by virtue of assignment registered as No 74, page 74 at volume 150 at the Federal Lands Registry, Ikoyi, Lagos.
h. The 1st Applicant has also divested his interest in the property to the 2nd, 3rd and 4th Applicants with a covenant to indemnify the 2nd, 3rd and 4th Applicants from any successful claim by a third party.
i. The 2nd applicant has perfected his title by obtaining the requisite consent and his deed of Assignment is registered as No 31 page 31 in volume 173 of the Register of Deeds kept at Federal Lands Registry, Ikoyi, Lagos.
j. The 2nd, 3rd and 4th Applicants are in possession and occupation of the property.
k. The judgment and orders of the lower Court of 28th February, 2014 were clearly directed at the Applicants and severely affects the interests of the Applicants who were not parties to the suit or the proceedings.
l. The Court has no jurisdiction to make an order or orders against a person who will be affected by its decision if such a person is not a party or has no opportunity to defend the suit.
m. The lower Court had no jurisdiction whatsoever to make orders against the interests of the Applicants who were not parties to the suit or the proceedings. See BABATOLA V. ALADEJANA (2001) 12 NWLR (PT. 728) 597.
n. The Applicants had no opportunity to defend the suit and were thereby denied their constitutional right to fair hearing.
o. The Applicants are persons properly and truly aggrieved by the orders made by the lower Court which severely affects the applicants and they are entitled to seek leave to appeal as persons interested and not being a party in the said suit where the judgment was made, require the leave of Court to appeal under Section 243 (a) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
p. The Applicants are desirous of prosecuting an appeal against the judgment of the lower Court.
q. The proposed grounds of appeal clearly raise fundamental issue of jurisdiction and substantial, arguable and serious issues of law.
r. The proposed appeal raises such substantial, arguable and serious issues of law including lack of jurisdiction that the enforcement of the judgment ought to be stayed and/or suspended until the hearing and determination of the application and/or the appeal to be filed pursuant to the grant of reliefs sought herein.
s. It is within the competence and jurisdiction of this Honourable Court to grant leave to the Applicants to appeal against the said judgment.
t. There are special and compelling circumstances as fully stated herein and in the affidavit in support of this application which discloses good grounds for this Honourable Court to stay execution/the affect of the judgment of the lower Court delivered on 28th February, 2014.
u. The issue of jurisdiction when raised in the grounds of appeal is an exceptional circumstance justifying the granting of an order of stay of execution by the Court. See the Supreme Court?s case of IRAGBIJI V. OYEWINLE (2013) 13 NWLR (PT.1372) 566 at 583 para D where Rhodes-Vivour JSC put the position of the law succinctly thus:
Jurisdiction amounts to special circumstances. A prima facie case of jurisdiction is a substantial or exceptional reason to justify a grant of stay of execution.
v. An order for stay of execution or an order for injunction pending appeal amounts to the same thing. See ONUZULIKE v. COMMISSIONER FOR SPECIAL DUTIES (1990) 7 NWLR (PT. 161) 252 & 259.
w. The matters raised in the proposed notice of appeal are so fundamental that this is a proper case in which effect ought not to be given to the said judgment in any manner whatsoever until issues are resolved on appeal.
x. The Court has a duty in law to order a stay of the effect of the said judgment in this case having regard to the issues raised in the proposed appeal and in the circumstances.
y. The Court has a duty to preserve the res in order not to render the judgment of the Court of Appeal nugatory in the likely event that the proposed appeal succeed.
z. The Court has an inherent power to stay the effect of the judgment pending the hearing and determination of this application or the appeal to be filed pursuant to this application.
aa. It is necessary that an order of stay of execution of and/or giving effect to the judgment of the trial Court delivered on the 28th February, 2014 pending the hearing and determination of this application or the appeal to be filed pursuant to the grant of leave.
bb. An applicant for leave to appeal is an appellant. See the case of KALU V. ODILI (1992) 5 NWLR (PT. 240) 120.
cc. This application is brought in good faith.
The application is supported by a 43 paragraphs affidavit deposed to by Babatunde Adeniyi Adejuwon, the 2nd applicant; a written address filed on 10/3/17 and a reply on points of law filed 8/6/18. The application was settled by Aanu Ogunro, Esq and Uche Ozoagbo, Esq of Kola Awodein & Co.
The Plaintiff/1st Respondent on 13/10/15 filed a 35 paragraphs counter affidavit deposed to by Adedotun Ajulo together with a written address filed on 23/3/17 but deemed 12/6/18.
The applicants formulated an issue for determination:
Whether having regard to all the circumstances of this case, the Applicants are entitled to the reliefs sought.
The applicants submitted that in the circumstances of this case they ought to be granted leave to appeal by virtue of Section 243(a) of the 1999 Constitution (as amended) because the judgment of the Federal High Court, Lagos coram ABANG, J delivered on the 28/2/2014 in Suit No: FHC/L/CS/424/2010 affects the interest of the parties.
Among the reliefs which the applicants claim affects them are:
i. DECLARATION that sale of the property located at 5A, Sasegbon Street, GRA, Ikeja to a 3rd party is null and void.
ii. An Order restoring and/or reinstating the 1st Respondent/Plaintiff to 5A, Sasegbon Street, GRA, Ikeja Lagos Immediately.
iii. An Order that possession of what is on the land known as 5A, Sasegbon Street, GRA, Ikeja be given to the 1st Respondent/Plaintiff.
iv. An Order that anyone occupying the property located at 5A, Sasegbon Street, GRA, Ikeja be ejected.
Applicants relied on the cases of WILLIAMS V MOKWE & ANOR (2005)14 NWLR (PT 945) 249; CHIEF ONWUKA KALU V CHIEF VICTOR ODILI & 40 ORS (1992) 5 NWLR (PT 240) 130 at 171 ? 172, paras H – A; CHRISTOPHER EDE V OGENYI NWIDENYI & ORS (RE; OGBUZURU UGADU) (1988) 5 NWLR (PT 93) 189; CHIEF GANI FAWEHINMI V NBA (NO2) (1989) 2 NWLR (PT 105) 494.
Applicants also drew the Courts attention to affidavit in support of the application and submitted that the applicants have the constitutional right to seek leave to appeal. The applicants are also seeking an order for stay of execution and injunction and submitted that this Court has the jurisdiction to grant same. They relied on KIGO NIG LTD V HOLMAN BROS (1980) 5 – 7 SC (Reprint) 41; KALU V ODILI (1992) 5 NWLR (PT 240) 130; SPDC V AMADI (2011) MJSC VOL 5 – 7 (PT 1) 1 at 47.
Applicants argued that they have satisfied a special or exceptional circumstance to justify the grant of a stay of execution.
He relied on IRAGBIJI V OYEWINLE (2013) 13 NWLR (PT 1372) 566 at 583; AGBAJE V ADELEKAN (1990) 7 NWLR (PT164) 595 at 611 ? 612.
They also submitted that in the light of the 2nd applicant?s deposition at paragraphs 5 and 11 of the affidavit that he is in possession and presently developing the said property, a refusal of the application for stay will alter the res and render nugatory the decision of the Court of Appeal in the event of a successful appeal.
In opposing the application, 1st Respondent?s written address distilled a sole issue thus:
Whether the applicants are entitled to the reliefs sought.
He submitted that the applicants did not participate during the trial of the matter at the lower Court and that issue of stay cannot be raised in the absence of a valid notice of appeal. He relied on FAMU V KASSIM (2013)7 NWLR (PT 1352) PG 166 at 189; LSBPC V PURIFICATION TECH (NIG) LTD (2013) 7 NWLR (PT 1352) 82; FAMU V KASSIM (2013) 7 NWLR (PT 166) at 189 paras D-F; G. S. & D IND. LTD V NAFDAC (2012) 5 NWLR (PT 1294) 511; UMEH V IWU (2008) 8 NWLR (PT 1089) 225 at 243, paras B – C.
He submitted that the application is an abuse of Court process as same is wanting in bonafide, frivolous, vexatious, improper use of rules of practice and procedure of the Courts with intent to harass or embarrass and or annoy a party and also delay the expeditious hearing and determination of matters as provided by the rules of Court. He referred to AMACHREE V PRINCEWILL (2008) 12 NWLR (PT 1098) 345 at 362; OLUTINRIN V AGAKA (1998) 6 NWLR (PT 554) 366.
In reply, applicants reiterated that stay can be granted before an appeal is lodged. They relied on NIGERIAN AGRICULTURAL CO-OPERATIVE BANK LTD V MR LEWECHI OZOEMELAM LPELR ? 26051 (SC); RE: THE SHERIFF, HIGH COURT OF JUSTICE RIVERS STATE, PORT HARCOURT (2017) LPLER ? 42509 (CA) to the effect that there are circumstances where stay is granted without an appeal filed.
Applicants also submitted that undertaking has been given to pursue the appeal expeditiously and that the applicants are therefore entitled to a stay of execution. That the case of FAMU V KASSSIM (supra) cited by the 1st Respondent is inapplicable and they relied on the cases of ADEGOKE MOTORS V ADESANYA (1989) 3 NWLR (PT 109) 250 at 275; BABATUNDE V P.A.S & T.A LTD (2007) 13 NWLR (PT 1050) 113 at 157.
Applicants stated that paragraphs 28 – 30 of the affidavit shows why leave should be granted and that they had sought the leave of the lower Court to appeal as interested persons but that the lower Court could not determine their application within time and that they have shown concrete reason why they had to bring an application for extension of time. They also stated that where the issue of jurisdiction is raised in a proposed appeal, it is enough reason for the appeal to be heard. They referred toUKWU V BUNGE (1997) 8 NWLR (PT 518) 527.
The Applicants contended that their written address is valid and competent because the process was signed by counsel, stamped and seal affixed and filing fees paid. He further argued that the process cannot be invalid because of it being undated. He referred to AIYEDUN V REGISTRAR, UPPER AREA COURT ILORIN & ORS (2016) LPELR – 41186 CA. In addition they submitted that it is not relevant that the issue 9 and 10 of the counter affidavit was not supported by any argument and should therefore be deemed abandoned and that even if not deemed abandoned, the issue is of no momentum as the applicants’ vendor is not a party to the suit. They citedORONTI V ONIGBANJO (2012) 12 NWLR (PT 1313) 23 at 38.
RESOLUTION
In resolving whether the applicants have made out a case for the grant of this application, it is imperative to find out if they meet the requirements for interested parties to appeal. In ACN & ORS V LABOUR PARTY & ORS (2012) LPELR – 8003 (CA), this Court held thus on what an applicant must show to qualify as a person interested in an appeal:
“A person who was not a party at the lower Court but seeks to appeal as an interested party under Section 243(1) (a) of the Constitution of the Federal Republic of Nigeria, 1999 should exhibit on the record his interest and show that he is aggrieved by the decision he intends to appeal against.”
Also the apex Court in SOCIETE GENERALE BANK LTD V AFEKORO & ORS (1999) LPELR – 3082 (SC) on the nature of interest to qualify a party to appeal as person interested or as person having interest in a matter held thus:
“… in Ede v. Nwidenyi & Ors, In Re Ogbuzuru Ugadu & Anor (1988) 5 NWLR (Pt.93) 189, where this issue arose, Karibi-Whyte, JSC held at p, 202: “Concisely stated, the interest which will support an application under the provision must be a genuine and legally recognizable interest, in respect of a decision which prejudicially affects such interest – See In re Reed Bowen & Co. Exp. Official Receiver (1887) 19 Q.B.D 174 at p.178; A-G for the Gambia v. Njie (1961) 2 All ER. 504.”
Therefore to examine the interest disclosed, the affidavit in support of the application is pivotal. Paragraphs 5, 6, 7, 8, 10, 11, 12, 13, 14, 16, 17, 19a – f, 28, 29, 30 & 31 and other relevant paragraphs are reproduced herein:
4. This application is to protect the rights and interests of the Applicants/interested Persons and to enable the Applicants/Interested Persons have a fair hearing as provided by Section 36 of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
5. I am in possession and occupation of 1175.349 Square meters of the property known as and situated at Plot 5A, Sasegbon Street, GRA, Ikeja, Lagos and I am conversant with the facts of this case.
6. I became seized of 1175.349 square meters of the property known as and situated at Plot 5A, Sasegbon Street, GRA, Ikeja, Lagos by virtue of a deed of assignment dated 9th September, 2013 between Summerset Continental Hotel Ltd as the Assignor and myself as the Assignee.
7. I paid a consideration of N25,000,000.00 (Twenty Five Million Naira) only for the said property.
8. I have since obtained the requisite consent for the assignment. The Deed of Assignment and the consent is hereby attached and marked as Exhibit KA1.
9. I know that Summerset (1st Applicant) became seized of the whole property known as Plot 5A, Sasegbon Street, GRA, Ikeja, Lagos by virtue of a Deed of Assignment dated 11th November, 2011, between Aade Industrial & Investment Co. Ltd as the Assignor and Summerset Continental Hotel Ltd as the Assignee. The Deed of Assignment is hereby attached and marked as Exhibit KA2
10. Aade Industrial & Investments Co. Ltd became seized of the whole property known as Plot 5A, Sasegbon Street, GRA, Ikeja, Lagos by virtue of Certificate of Occupancy issued to it by the Federal Government, dated 11th May, 2009 and registered as No. 53 at page 53 in Volume 124 at the Federal Land Registry, Ikoyi, Lagos for a term of 99 years commencing from 5th February, 2007. The Certificate of Occupancy is hereby attached and market as Exhibit KA3.
11. I am aware that the 1st Applicant who transferred its interest in the said property to me made a covenant to indemnify me from all losses arising from or connected with any successful claim by a third party.
12. I am in possession of and presently developing the part of the property assigned to me by the 1st Applicant.
13. I am also aware that the 3rd and 4th Applicants are in possession of the remaining parts of the property known as Plot 5A, Sasegbon Street, GRA, Ikeja, Lagos.
14. The Federal High Court sitting at Lagos per Abang J. had on 28th February 2014 delivered its judgment in Suit No. FHC/L/CS/424/2010 MRS OLAMIDE O. OGUNGBE V. THE HONOURABLE MINISTER FOR WORKS, HOUSING & URBAN DELELOPMENT AND 2 OTHERS which among other things severely affects the Applicants. The said judgment is hereby attached and market Exhibit KA4.
15. In the said judgment, this lower Court inter alia-
a. declared the sale of the property located at 5A, Sasegbon Street, GRA, Ikeja null and void.
b. Ordered that possession of what is on the land known as 5A, Sasegbon Street, GRA, Ikeja be given to the Plaintiff/Respondent.
c. Ordered that anyone occupying the property located at 5A, Sasegbon Street, GRA, Ikeja be ejected.
16. By the said Judgment,
a. My title and right to possession and occupation of the said property has been affected.
b. The rights of the 3rd and 4th Applicants to possession and occupation of their part of the property has also been affected.
c. The Court also ordered the Plaintiff/Respondent to take over my property and the property of the 3rd and 4th Applicants.
17. I was not a party in the said suit filed by the Plaintiff/Respondent.
18. I am aware that all the other Applicants were not parties to the said suit although they have title and are in possession of the remainder portion of the property located at 5A, Sasegbon Street, GRA, Ikeja.
19. I was informed by Abdulazeez Olukayode, Head of Estate of Aade Industrial & Investments Co. Ltd (the 1st Applicant’s Predecessor in Title) on 6th day of March, 2014 at a meeting at the Law Firm of Kola Awodein& Co. 6th Floor UBA House, 57 Marina Lagos at about 9am and I verily believe him as follows:
a. The Federal Government advertised the property situate at and known as 5A, Sasegbon Street, GRA, Ikeja for open bidding sometime in 2007.
b. Aade Industrial & Investments Co. Ltd bid for the property and was offered the property as the highest bidder for the sum of N66,000,000 (Sixty-Six Million Naira) only.
c. Aade Industrial & Investments Co. Ltd paid the sum of N66,000,000.00 (Sixty-six Million Naira) only and the Federal Government transferred the property to Aade Industrial & Investments Co. Ltd.
d. The Federal Government issued to Aade Industrial & Investments Co. Ltd. a certificate of occupancy over the property known as 5A, Sasegbon Street, GRA, Ikeja, Lagos dated 11th May, 2009 and registered as No. 53 at page 53 in Volume 124 at the Federal Land Registry, Ikoyi, Lagos for a term of 99 years commencing from 5th February, 2007.
e. Aade Industrial & Investments Co. Ltd. became seized of this property since 5th February, 2007 which is 3 years before this suit was instituted in 2010.
f. By a deed of assignment dated 11th November, 2011, Aade Industrial & Investments Co. Ltd assigned its unexpired residue in the said property to the 1st Applicant, Summerset Continental Hotel Ltd for a consideration of Eighty-Five Million Naira (N85,000,000.00) only.
20. The Judgment was directed at me and the other Applicants being the persons with title and in possession of the said property
21. The 1st Applicant will also be affected by the judgment as he has a covenant of indemnity with me.
22. The judgment severely affects the interests of the Applicants despite the fact that I and the other Applicants were not parties to the suit or the proceedings at all.
23. I and the other Applicants did not have the opportunity to defend the suit and were thereby denied our constitutional right to fair hearing.
24. The interest of the Applicants is severely affected by the judgment of the trial Court and the Applicants have an interest in the matter and in appealing against same.
25. The Applicants/Interested Persons are willing and have genuine intentions to prosecute the appeal when the leave of this Honourable Court is granted to the Applicants/Interested Persons.
26. The Applicants require leave of this Honourable Court to appeal as persons interested in the judgment of the Court.
27. The Applicants also require orders of this Honourable Court extending the time within which they can seek for leave to appeal and the time within which to appeal the judgment of the lower Court.
28. The Applicants also require orders of this Honourable Court extending the time within which they can seek for leave to appeal and the time within which to appeal the judgment of the lower Court.
29. The Applicants had made a similar application inter alia for leave to appeal as persons interested first at the lower Court as required by law by their application dated 6th March, 2014 before the lower Court.
30. Due to the time it took to hear and determine the Applicants’ Motion for Leave to Appeal at the lower Court, the Applicants are now out of time within which to apply for leave and to appeal.
31. The Applicant had also filed a motion before this Honourable Court dated 28th May, 2014 with Appeal No: CA/L/522M/14 seeking the same reliefs being sought in this application.
36. I know as a fact that the grounds of appeal in the said proposed Notice of Appeal clearly raise a fundamental issue of jurisdiction and substantial, arguable and serious issues of law.
38. Unless an order of this Court in terms of the reliefs sought on the motion paper is made staying execution of and/or giving effect to the judgment of the lower Court delivered on 28th February, 2014 the Plaintiff/1st Respondent will execute the judgment to the detriment of the Applicants and the Applicants will suffer grievous injury.
40. I have the authority of the 1st, 3rd and 4th Applicants/Interested Persons to give an undertaking as to damages in favour of the Respondents against any loss which they may suffer as a direct result of the injunction sought and obtained if it ought not to have been so sought and obtained.
This application will not be understood without putting a summarised version of the issues at play to bring the interest and positions of the applicants herein.
The Honourable minister for works and housing and the Secretary to the implementation committee on alienation of Federal government landed property, sold the property in dispute – 5A, Sasegbon Street, GRA, Ikeja to the 2nd applicant while the 1st Respondent was a sitting tenant and had the first right of refusal which was denied her. She was ejected forcefully and home demolished suddenly by the 3rd Respondent for the benefit of the 2nd applicant who whilst the issue dragged sold to the 1st applicant, 3rd and 4th applicants. The 1st Respondent filed an action for declaration and reinstatement of her official quarters amongst other reliefs (see above reproduced reliefs).
The applicants claim the beneficiaries of the actions of the 2nd and 3rd Respondent, and developed the property while the litigation was on and the suit number boldly written on the walls of the said property (see exhibits KA1, KA2, KA3). Now, the applicants being aware that judgment was delivered against the implementation committee and possession now granted to the 1st Respondent, suddenly arose to file an application at the lower Court as interested parties and for stay of execution of judgment which were refused on 27/5/14 and 28/5/14. They have now approached this Court for a joint relief.
I have seen the attachments to link titles of the applicants at each stage. As an aside I have found that exhibit KA1 is the deed of assignment between SUMMERSSET CONTINENTAL HOTEL LTD AND BABATUNDE ADENIYI ADEJIUWON Exhibit KA1, deed of assignment between AADE INDUSTRIAL & INVESTMENTS CO. LTD AND SUMMMERSET CONTINENTAL HOTEL LTD exhibit KA2, and FEDERAL GOVERNMENT CERTIFICATE OF OCCUPANCY 7/3/14 – Exhibit KA3 in proof of having bought from the 3rd Respondent and assigned to the 1st applicant. There is no link between the 3rd and 4th applicant and the 2nd and 3rd Respondent in all the exhibits and in the affidavit evidence. Therefore I shall discountenance them as having no locus standi and therefore no interest. The 3rd and 4th applicants ought to be struck out of this application and they are accordingly struck out.
The Supreme Court in OWENA BANK PLC V NSE LTD (1997) LPELR ? 2843 (SC) held thus:
“…See D.D. Ikonne v. Commissioner of Police, Imo State & Anor. (1986) 4 NWLR (Pt. 36) 473 at 503 (per Karibi-Whyte, JSC). Wherein it was held that for an applicant to be entitled to appeal as “a person having an interest in the matter” under Section 222(a) of 1979 Constitution, he must “show not only that he is a person interested but also that the Order made prejudicially affects his interest.” See also In Re Ijelu (1992) 9 NWLR (Pt.266) 414 and IN RE UGADU .(1988) 5 NWLR (Pt. 93) 189.
That the interest referred to here must be “a legally recognisable interest” finds expression in Aniagolu. JSC’s observation in Ikonne’s Case (supra) wherein the learned Justice said at page 498 of the report thus: “The spirit of the provisions of Section 222(a) of the 1979 constitution cannot accommodate the malicious interest of the respondent as a recognisable interest under the Section……The malice destroys the legality of the interest which interest upon public policy, cannot be recognised by the Courts.” Thus, as Aniagolu, JSC further said in the Ikonne’s case, an ultra vires act by a statutory body cannot constitute an interest that can be recognised under Section 222(a) 1979 Constitution.”
In EGOLUM V OBASANJO & ORS (1999) LPELR – 1046 (SC) the Court stated that:
“The fundamental aspect of locus standi is that it focuses on the party asking to get his complaint before the (High) Court not on the issues he wishes to have adjudicated,” – per Obaseki J.S.C. in Adesanya v. President of Nigeria & Anor. (1981) 2 N.C.L.R 358: (1981) 12 N.S.C.C 146, 173. The importance of the standing of a litigant to bring an action was once highlighted by this Court, In Alhaji Olorunkemi Ajao v. Mrs. L.E. Sonola & Anor. (1973) 5 S.C. 119 at 123, this Court, per Coker J.S.C., observed. “We consider it generally accepted as a sound legal proposition that the plaintiff to an action must be competent to institute such an action and if such a plaintiff claims by substitution, he has the onus of proving that he has the legal capacity to do the legal act which he had set out to perform.
The Court brought it out more clearly the connection between the cause of action and locus standi in UWAZURUONYE V THE GOVERNOR OF IMO STATE & ORS (2012) LPELR 20604 (SC):
“In the absence of a reasonable cause of action or any cause of action for that matter the appellant has no locus standi.”
Now left with 1st and 2nd applicants, paragraphs 4 – 23 of the affidavit in support deals with interest of the applicants and how it was affected. While paragraphs 25 – 29 are reasons for filing late, paragraph 36 deals with the grounds of appeal that they are good while paragraphs 38 and 40 are on reason for the stay and an undertaking as to stay of appeal.
The reason for the interest is contained in paragraph 16 of the affidavit in support, but paragraphs 8 and 9 of the counter affidavit have not been challenged and they are reproduced below for clarity:
8. I have since obtained the requisite consent for the assignment. The Deed of Assignment and the consent is hereby attached and marked as Exhibit KA1.
9. I know that Summerset (1st Applicant) became seized of the whole property known as Plot 5A, Sasegbon Street, GRA, Ikeja, Lagos by virtue of a Deed of Assignment dated 11th November, 2011, between Aade Industrial & Investment Co. Ltd as the Assignor and Summerset Continental Hotel Ltd as the Assignee. The Deed of Assignment is hereby attached and marked as Exhibit KA2.
There is no further affidavit thus the deposition is deemed admitted. The applicants were well aware of the litigation and stood by. See paragraph 10 of the Counter Affidavit which stands unchallenged:
10. That in response to paragraphs 4, 5, 6, 7 the property at 5a Sasegbon Street, GRA, Ikeja, Lagos cannot be subject of transfer during the pendency of the suit instant. The suit number remains printed on the wall of the property till the end of the litigation.
While the 2nd and 3rd Respondent fought the case, the 1st and 2nd applicant waited to harness the benefits of the outcome if favourable. The 1st applicant has a covenant of indemnity with the 2nd applicant that he will also be affected by the judgment. The stark reality of this case is that they swim or sink with the 2nd and 3rd Respondents whose action has been nullified.
The nature of the interest of the 1st and 2nd applicant needs to be closely perused to see the importance to the appeal or the case abinitio. In INEC V ADMIRAL MURITALA NYAKO (2011) LPELR 4313 (CA), GARBA, JCA at page 33, paras D-F held thus:
in law, the mere consequence of a decision by a Court does not vest a person with the status of an aggrieved party.
Thus where a party is not clearly aggrieved by the order of a trial Court itself but by the consequence which arises from it, such a party is not entitled to appeal having not shown a legal grievance.
The interest must be genuine and shown a legally recognizable interest in respect of a decision which is prejudicially affected. OMOTESHO V ABDULLAHI (SUPRA), EDE V NWIDENYI, IN RE UGADU (1988) 1 NWLR (93) 189.
I am of the view that their presence will add no value to the controversy, they benefitted from the action of the 2nd and 3rd Respondent and judgment has been delivered. The application in my view is a mere consequence of a decision by the Federal High Court. The applicants are not aggrieved by the order of the Court but by the consequence which arises that is the order for reinstatement into the premises which arose from the claim filed at the lower Court.
In paragraph 38 of the affidavit in support of the application, they undertook to file a undertaking in damages but what is more relevant is a grant of a stay of execution cannot be granted when no Notice of Appeal has been filed and there is also no undertaking to expedite action on the appeal. See NIGERIAN AGRICULTURAL CO-OPERATIVE BANK LTD V OZOEMELAM (SUPRA). In the absence of this undertaking, this Court cannot grant a stay of execution under the circumstances. The applicants benefitted from a wrong act and to indulge them will negate the intention of the judgment having stood by. The doctrine of lis pendis applies. The principle of not granting stay of execution and injunction without a Notice of Appeal is hereby invoked. See FAMU & ORS V KASSIM & ORS (SUPRA).
The application is therefore incompetent and it is accordingly dismissed. Costs of N200,000 is awarded in favour of the 1st Respondent.
TOM SHAIBU YAKUBU, J.C.A.: I am in entire with the reasons advanced in the lead ruling by his Lordship, ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, JCA., which culminated in the dismissal of the application.
I endorse and adopt the award of costs as contained in the lead ruling, as mine.
JAMILU YAMMAMA TUKUR, J.C.A.: I read in draft before today the lead Ruling just delivered by my lord ABIMBOLA OSARUGUE OBASEKI-ADEJUMO J.C.A. I agree with the reasoning and conclusion. I have nothing to add.
Appearances:
Aanu OgunroFor Appellant(s)
Lawal Alebiosu for 1st Respondent.
C. C. Dike for 2nd, 3rd & 4th RespondentsFor Respondent(s)
