IN RE: CHIEF FOLARIN AMUROGE v. PRINCE MOSUDI ADEYINKA ONAKADE & ORS
(2022)LCN/16853(CA)
In The Court Of Appeal
(IBADAN JUDICIAL DIVISION)
On Thursday, June 02, 2022
CA/IB/255/2020(R)
Before Our Lordships:
Yargata Byenchit Nimpar Justice of the Court of Appeal
Folasade Ayodeji Ojo Justice of the Court of Appeal
Abba Bello Mohammed Justice of the Court of Appeal
Between
OBA OLUWAYOMI ADEMOLA ODENEYE-ADEYIGA IN RE: CHIEF FOLARIN AMUROGE – APPLICANT APPELANT(S)
And
1. PRINCE MOSUDI ADEYINKA ONAKADE 2. THE GOVERNOR OF OGUN STATE 3. THE COMMISSIONER FOR LOCAL GOVERNMENT & CHIEFTAINCY AFFAIRS OGUN STATE RESPONDENT(S)
RATIO
WHETHER OR NOT AN APPLICATION WHICH HAS BEEN STRUCK OUT CAN BE RELISTED
The law is settled that an application which is struck out may be relisted. An applicant in an application that is struck out is at liberty to relist or revive it once the defect that necessitated the striking out is remedied. See AJIJOLA VS. RASAKI (2019) 5 NWLR (PT. 1665) 284; LAFFERI NIGERIA LIMITED VS. NAL MERCHANT BANK PLC (2015) 14 NWLR (PT. 1478) 64; SIFAX NIGERIA LTD. VS. MIGFO NIGERIA LIMITED (2016) 7 NWLR (PT. 1510) 10 AND BADEJO VS. FEDERAL MINISTER OF EDUCATION (1996) 8 NWLR (PT. 464) 15.
An order striking out an application connotes suspension and it is temporary. A dismissal order on the other hand terminates the life of the application. An application which is withdrawn and struck having not been heard on its merit can be resuscitated.
See YOUNG SHALL GROW MOTORS LIMITED VS. OKONKWO (2010) 15 NWLR (PT. 1217) 524 AT 539 PARAS D-E. In PANALPINA WORLD TRANSPORT (NIG) LTD VS. J.B. OLANDEEN INTERNATIONAL (2010) 19 NWLR (PT. 1226)1 AT 20 PARAS A-G, the Supreme Court per Adekeye JSC held as follows:
“When an order of Court is made in respect of an application not heard on the merits, it amounts to striking out simpliciter. Even where an order of dismissal is made following a hearing which is not based on the merits, such order is still considered in law a mere striking out. When a matter is struck out in such circumstance, there is a liberty to relist. The simple explanation is that while the matter is discontinued as from that date, it is still alive and kept in the Court’s general cause list and can be brought back to the hearing cause list when an application to relist has been granted. In such case, the plaintiff still has another opportunity to re-open the action after rectifying the deficiency that resulted in the striking out of the action. This is applicable even where the Court has not included in the order of striking out that the plaintiff has an option to relist. The matter struck out has not left the cause list – as it is still a pending case or pending cause. The same procedure applies even when a matter has been decided many years ago.
Alor Vs. Ngene (2007) All FWLR Pt. 362 pg. 1836; (2007) 17 NWLR (Pt. 1062) 163; Waterline Nigeria Limited Vs. Fawe Services Limited FWLR (Pt. 163) pg. 88. PER OJO, J.C.A.
THE RIGHT OF APPEAL TO THE COURT OF APPEAL
Section 243 (1) (a) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) provide as follows: “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 the 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 an 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 or persons as may be prescribed.”
By the above provision, a person who was not a party to the proceedings in the trial Court may with leave of the trial Court or this Court, appeal against the judgment. It guarantees the right of the person who has interest in a matter to appeal to this Court. It is a right exercisable by a person aggrieved by the judgment. See ODEDO VS OGUEBEGO (2015) 13 NWLR (Pt. 1476) 229; ONUEGBU & ORS. VS. GOVERNOR OF IMO STATE & ORS. (2019) LPELR – 47535 (SC) and IN RE: MADAK (1996) 7 NWLR (Pt. 459) 153.
Section 24 (2)(a) of the Court of Appeal Act provides that a person who wishes to appeal against a final decision to the Court of Appeal shall do so within three months of the delivery of the judgment and where he fails to do so he shall apply for extension of time to so do. A person who wishes to appeal as an interested person shall also apply to do so within the time frame provided by Section 24(2)(a) (supra) and where he fails to do so he shall in addition to other prayers apply for extension of time to so do. PER OJO, J.C.A.
THE DUTY OF AN APPLICANT WHO SEEKS TO APPEAL AS AN INTERESTED PARTY
Having scaled this hurdle, it is further the law that an Applicant who seeks to appeal as an interested party must establish, before the Court vide his affidavit evidence, his interest in the matter. He must disclose sufficient interest in the matter. See YUSUF VS. ADEYEMI (2009) 15 NWLR (PT. 1476) 229; OPEKUN VS. SADIQ (2003) 5 NWLR (PT. 814) 475; ‘K’ LINE INC. VS. KR. INTERNATIONAL (NIGERIA) LTD. (1993) 5 NWLR (PT. 292) 159 AND SOCIETE GENERALE BANK NIGERIA LIMITED VS AFEKORO (1999) 11 NWLR (PT. 628) 521. PER OJO, J.C.A.
FOLASADE AYODEJI OJO, J.C.A. (Delivering the Leading judgment): This is a Motion on Notice filed on the 8th of February, 2022 pursuant to the provisions of Section 243(a) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), Section 15 of the Court of Appeal Act Cap. 36 Laws of the Federation 2004 and under the inherent jurisdiction of this Court wherein the Applicant seeks the following reliefs:
1. An Order for enlargement of time within which to seek the Leave of this Honourable Court for the Applicant to appeal against the decision of the Ogun State High Court, Sagamu Division in Suit No. HCS/62/18 – OBA OLUWAYOMI ADEMOLA ODENEYE-ADEYIGA VS. PRINCE MOSUDI ADEYINKA ONAKADE AND TWO OTHERS as a person interested.
2. An Order granting Leave to the Applicant to appeal against the decision of the Ogun State High Court, Sagamu Division in Suit No. HCS/62/18 – OBA OLUWAYOMI ADEMOLA ODENEYE-ADEYIGA VS. PRINCE MOSUDI ADEYINKA ONAKADE AND TWO OTHERS as a person interested.
3. An Order enlarging time within which the Applicant may file a Notice of Appeal against the decision of the Ogun State High Court, Sagamu Division in Suit No. HCS/62/18 OBA OLUWAYOMI ADEMOLA ODENEYE-ADEYIGA VS. PRINCE MOSUDI ADEYINKA ONAKADE AND TWO OTHERS as a person interested.
4. An Order granting Leave to the Applicant to join the already pending appeal against the decision of the Ogun State High Court, Sagamu Division in Suit No. HCS/62/18 – OBA OLUWAYOMI ADEMOLA ODENEYE-ADEYIGA VS. PRINCE MOSUDI ADEYINKA ONAKADE AND TWO OTHERS before this Honourable Court as a person interested/2nd Appellant being Appeal No. CA/IB/255/2020 Between OBA OLUWAYOMI ADEMOLA ODENEYE-ADEYIGA VS. PRINCE MOSUDI ADEYINKA ONAKADE AND TWO OTHERS.
The Application is predicated on nine (9) grounds adumbrated ex facie the motion paper and supported by an 18 paragraphed affidavit deposed to by the Applicant. Exhibited and attached to the affidavit is the proposed Notice of Appeal.
A written address settled by Phillip Ejor Tagbo Esq. was filed contemporaneously with the Application.
The 1st Respondent who is opposed to the application caused a 12 – paragraphed counter-affidavit to be deposed on his behalf by one Michael Odunlami, a litigation officer in the Chambers of Professor A.B. Kasumu, the law firm representing him. Attached to the counter-affidavit are four documents marked Exhibits, CA/AO/1; CA/AO/2, CA/AO/3; and CA/AO/4 respectively.
Filed along with the counter-affidavit is a written address settled by one Chief A.B. Ogedengbe.
The Applicant deposed to a further and better affidavit of sixteen paragraphs on the 23rd of February 2022 which was deemed properly filed on the 5th of March 2022. Attached to the further and better affidavit is the certified true copy of the judgment of this Court in APPEAL NO: CA/IB/145/2008 as Exhibit FA2. A reply address to the 1st Respondent’s written address was also filed.
A sole issue was nominated for the determination of this application on behalf of the Applicant. It is:
“Whether the Applicant has not shown in his Affidavit evidence that he has sufficient interest entitling him to be granted leave to appeal against the decision of the trial Court as a person interested.”
The following two issues were formulated on behalf of the 1st Respondent:
1. Whether the Order of striking out made by this Honourable Court on 10th January, 2021 is tantamount to dismissal in which case the Applicant cannot come again before your Lordship with the same application.
2. Whether there is sufficient, credible evidence from the Affidavit and Counter Affidavit filed herein that the Applicant has sufficient interest entitling him to be granted leave to appeal against the decision of the trial High Court as a person interested.
The 2nd and 3rd Respondents who were duly served with the application did not file any process.
At the hearing of this application on the 15th of March, 2022 learned counsel on both sides identified the respective processes filed by them and adopted the written address filed on behalf of the parties.
I have carefully examined the issues submitted on behalf of the parties. The Applicant’s sole issue and the 2nd issue of the 1st Respondent are more or less the same. The 1st Respondent’s Issue Nos. 1 is in the nature of an objection to the application. I shall therefore adopt the two issues nominated on behalf of the 1st Respondent as the issues for determination. The two issues shall be considered together.
ISSUES ONE AND TWO
1. Whether the Order of striking out made by this Honourable Court on 10th January, 2021 is tantamount to dismissal in which case the Applicant cannot come again before your Lordship with the same application.
2. Whether there is sufficient, credible evidence from the Affidavit and Counter Affidavit filed herein that the Applicant has suffered interest entitling him to be granted leave to appeal against the decision of the trial High Court as a person interested.
As I stated earlier the first issue is in the nature of a preliminary objection and as such I shall deal with it first.
It is the contention of learned counsel to the 1st Respondent that an earlier application filed by the Applicants which was struck out by this Court on the 10th of January 2021 is tantamount to a dismissal. He submitted that this being so, the applicant is estopped from bringing the instant application.
From the record of the Court, the application referred to by the 1st Respondent was withdrawn by the instant applicant who filed it and same was struck out on the 10th of January, 2022.
The law is settled that an application which is struck out may be relisted. An applicant in an application that is struck out is at liberty to relist or revive it once the defect that necessitated the striking out is remedied. See AJIJOLA VS. RASAKI (2019) 5 NWLR (PT. 1665) 284; LAFFERI NIGERIA LIMITED VS. NAL MERCHANT BANK PLC (2015) 14 NWLR (PT. 1478) 64; SIFAX NIGERIA LTD. VS. MIGFO NIGERIA LIMITED (2016) 7 NWLR (PT. 1510) 10 AND BADEJO VS. FEDERAL MINISTER OF EDUCATION (1996) 8 NWLR (PT. 464) 15.
An order striking out an application connotes suspension and it is temporary. A dismissal order on the other hand terminates the life of the application. An application which is withdrawn and struck having not been heard on its merit can be resuscitated.
See YOUNG SHALL GROW MOTORS LIMITED VS. OKONKWO (2010) 15 NWLR (PT. 1217) 524 AT 539 PARAS D-E. In PANALPINA WORLD TRANSPORT (NIG) LTD VS. J.B. OLANDEEN INTERNATIONAL (2010) 19 NWLR (PT. 1226)1 AT 20 PARAS A-G, the Supreme Court per Adekeye JSC held as follows:
“When an order of Court is made in respect of an application not heard on the merits, it amounts to striking out simpliciter. Even where an order of dismissal is made following a hearing which is not based on the merits, such order is still considered in law a mere striking out. When a matter is struck out in such circumstance, there is a liberty to relist. The simple explanation is that while the matter is discontinued as from that date, it is still alive and kept in the Court’s general cause list and can be brought back to the hearing cause list when an application to relist has been granted. In such case, the plaintiff still has another opportunity to re-open the action after rectifying the deficiency that resulted in the striking out of the action. This is applicable even where the Court has not included in the order of striking out that the plaintiff has an option to relist. The matter struck out has not left the cause list – as it is still a pending case or pending cause. The same procedure applies even when a matter has been decided many years ago.
Alor Vs. Ngene (2007) All FWLR Pt. 362 pg. 1836; (2007) 17 NWLR (Pt. 1062) 163; Waterline Nigeria Limited Vs. Fawe Services Limited FWLR (Pt. 163) pg. 88.
This same procedure is open to an applicant whose motion has been struck out. He can either file a fresh motion or bring an application to relist it which option depend on the circumstances that led to the striking out of the motion or the nature of the order made. Where there was an attack on the contents of such motion made prior to it being struck out – a fresh application must be filed. A motion brought under the prerogative jurisdiction of the Court which is struck out can be refiled and brought before another Judge of the same jurisdiction. This is legally approved.”
An application is struck out when it has not been argued on its merit while a decision given after arguments have been taken from parties is one on merit. See ADEGBANKE VS. OJELABI (2021) LPELR – 54992(SC); INTEGRATED REALITY LIMITED VS. ODOFIN (2018) 3 NWLR (PT. 1606) 301 AND NATIONAL INLAND WATERWAYS AUTHORITY VS. SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED (2008) 13 NWLR (PT. 1103)48.
The Motion on Notice filed by the instant applicant on 30th June 2021 which was struck out on 10th January, 2022 was withdrawn by the applicant before arguments were taken. The Applicant withdrew it when he discovered some errors in the proposed Notice of Appeal. The issue whether or not leave should be granted the applicant to appeal as an interested party was not considered by the Court and no decision was taken on it. The order made upon the application for withdrawal was not one made on the merit. In the circumstance, the applicant is not barred from filing the instant application and I so hold. Issue No. 1 is resolved in favour of the Appellant and against the 1st Respondent.
The 2nd issue is whether the Applicant has sufficient interest to entitle him to be granted leave to appeal as an interested person.
The grounds for the relief sought as contained on the face of the motion paper are as follows:
1) “The High Court of Ogun State Sagamu Division gave its decision in SUIT NO: HCS/62/18 – OBA OLUWAYOMI ADEMOLA ODENEYE-ADEYIGA VS. PRINCE MOSUDI ADEYINKA ONAKADE AND TWO OTHERS on the 3rd day of June, 2020 dismissing the Claimant’s/Appellant’s claim and declaring that the stool of Alakenne of Ikenne was filled on 25th of May, 2011 when the Executive Council of Ogun State purportedly approved the nomination and selection of the 1st Respondent as the Alakenne of Ikenne.
2) The Applicant is the Ekeji Iwarefa of the Osugbo Cult in Ikenne-Remo and by virtue of his position he is one of the legally recognised Kingmakers who has the duty and responsibility of selecting the Alakenne of Ikenne from among the candidate or candidates that may have been nominated by the Ruling House whose turn it is to fill the vacancy of the Alakenne of Ikenne from among the candidate or candidates that may have been nominated by the Ruling House whose turn it is to fill the vacancy of the Alakenne of Ikenne Chieftaincy in accordance with the Alakenne of Ikenne Chieftaincy Declaration of 1998 and he has been so at all times material to this Appeal, that is at the time the 1st Respondent was purportedly nominated and selected, and during nomination and selection of the Appellant.
3) None of the nine (9) Kingmakers whose responsibility it was to select the Alakenne of Ikenne as clearly stated in the Alakenne of Ikenne Chieftaincy Declaration of 1998 was involved in the purported selection of the 1st Respondent as they were neither notified nor invited to the selection Meeting. As at the date of the purported selection of the 1st Respondent at least seven (7) of the nine (9) Kingmakers including the Applicant were still alive.
4) The decision of the High Court of Ogun State, Sagamu Division in SUIT NO: HCS/62/18 – OBA OLUWAYOMI ADEMOLA ODENEYE-ADEYIGA V. PRINCE MOSUDI ADEYINKA ONAKADE AND TWO OTHERS has prejudicially affected the Applicant’s interest having deprived him of his legally recognized constitutional duty and responsibility of selecting or taking part in the selection process of the Alakenne of Ikenne from among the candidates or candidates that were nominated by the Ruling House whose turn it is to fill the vacancy of the Alakanne of Ikene Chieftaincy in accordance with the Alakenne of Ikenne Chieftaincy Declaration of 1998.
5) The 1st Respondent was not validly nominated and selected to fill the vacant stool of the Alakenne of Ikenne under the Alakenne of Ikenne Chieftaincy Declaration Edict of 1998 or any other Law or at all.
6) That the Applicant filed an Application before this Honourable Court dated the 15th day of January, 2021 in this Appeal No. CA/IB/255/2020 wherein he sought the leave of this Honourable Court to join the already pending appeal without unfortunately seeking the leave of the Court to do so as a person interested.
7) That the Application had to be withdrawn and the Applicant filed another application dated the 28th day of June, 2021 which included a prayer for Leave of this Honourable Court to appeal as a person interested. Unfortunately, that application was also withdrawn due to an error on the Proposed Notice of Appeal.
8) The Applicant by this application is humbly seeking the Leave of the Honourable Court to Appeal as a person interested and to join this already pending appeal.
9) That the judgment of the lower Court already before this Court, the Record of Appeal in that matter having been transmitted to this Honourable Court in Appeal No. CA/IB/255/2020 Between OBA OLUWAYOMI ADEMOLA ADENEYE-ADEYIGA VS. PRINCE MOSUDI ADEYINKA ONAKADE AND TWO OTHERS”.
Learned counsel to the Applicant argued that the Appellant who has placed sufficient materials before the Court to establish his interest in the suit is entitled to the grant of the reliefs sought. He submitted that the Applicant who was a Kingmaker was denied the right to participate in the selection of the Alakenne of Ikenne. He relied on the cases of PRINCE EYIMADE OJO & 3 OTHERS VS. THE GOVERNOR OF OYO STATE & 3 OTHERS (1989) 1 NWLR (PT. 95) 1; MOGAJI VS. MILITARY ADMINISTRATOR OF EKITI STATE (1998) 2 NWLR (PT. 538)425; NDAYAKO VS. DANTORO (2004) 13 NWLR (PT. 889)187; MOHAMMED SABA BIDA & ANOR. VS. ALHAJI USMAN ABUBAKAR & ORS (2011) 5 NWLR (PT. 1239)130 AND OWOYEMI VS. ADEKOYA (1998) 8 NWLR (PT. 560) 70 on the locus standi of a kingmaker who was denied the right to participate in the process leading to the selection of an Oba to institute an action and went on to submit that the denial of the Applicant the right to participate in the selection process affected his interest, title, right and position as a Kingmaker. He urged us to grant the application as prayed.
For his part, learned counsel to the 1st Respondent argued that the Applicant has not placed anything before us to show that he was a Kingmaker and thus failed to establish the source of the right which he seeks to protect and if such right existed how it was breached. He craved in aid of his submission the case of IN RE: NDAYAKO (2003) 4 NWLR (PT. 809)42.
He urged us to dismiss the application.
Section 243 (1) (a) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) provide as follows: “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 the 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 an 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 or persons as may be prescribed.”
By the above provision, a person who was not a party to the proceedings in the trial Court may with leave of the trial Court or this Court, appeal against the judgment. It guarantees the right of the person who has interest in a matter to appeal to this Court. It is a right exercisable by a person aggrieved by the judgment. See ODEDO VS OGUEBEGO (2015) 13 NWLR (Pt. 1476) 229; ONUEGBU & ORS. VS. GOVERNOR OF IMO STATE & ORS. (2019) LPELR – 47535 (SC) and IN RE: MADAK (1996) 7 NWLR (Pt. 459) 153.
Section 24 (2)(a) of the Court of Appeal Act provides that a person who wishes to appeal against a final decision to the Court of Appeal shall do so within three months of the delivery of the judgment and where he fails to do so he shall apply for extension of time to so do. A person who wishes to appeal as an interested person shall also apply to do so within the time frame provided by Section 24(2)(a) (supra) and where he fails to do so he shall in addition to other prayers apply for extension of time to so do.
In this instant case, the judgment from which the Applicant seeks to appeal as an interested party was delivered on the 3rd of June 2020. This application was filed on 8th of February, 2022. The time within which the Applicant may appeal has thus lapsed. What then are the prayers to be sought by the Applicant who is out of time to appeal? The Supreme Court in the case of CYPRIAN CHUKWU VS. INDEPENDENT NATIONAL ELECTRICAL COMMISSION & OTHERS (2014) 10 NWLR (PT. 1415) 385 PER KEKERE-EKUN JSC AT PG. 439 held as follows: “The judgment of the trial Court was delivered on 7/10/2010 while the application for leave to appeal as an interested party was made on 27/5/2011 more than 200 days thereafter, the Statutory period of 90 days within which to appeal had lapsed. In the circumstances the applicant ought to have sought the following reliefs.”
1. Leave to appeal as interested party. (No enlargement of time required). This prayer is what opens the door for the interested party to participate in the appeal. Being out of time he then required
2. Extension of time to seek leave to appeal.
3. Leave to Appeal.
4. Extension of time to file Notice and grounds of Appeal.
See also MALARI VS. LEIGH (2019) 3 NWLR (PT. 1659) 332; OKOLIE VS. ANIEK (2019) 17 NWLR (PT. 1700) 90 AND OWENA BANK (NIG) PLC VS. NIGERIAN STOCK EXCHANGE LTD (1997) 8 NWLR (PT. 515) 1.
I have gone through the four reliefs sought by the Applicant in this application and I find them to satisfy the requirements laid down by the Supreme Court. They contain the requisite prayers and I so hold.
Having scaled this hurdle, it is further the law that an Applicant who seeks to appeal as an interested party must establish, before the Court vide his affidavit evidence, his interest in the matter. He must disclose sufficient interest in the matter. See YUSUF VS. ADEYEMI (2009) 15 NWLR (PT. 1476) 229; OPEKUN VS. SADIQ (2003) 5 NWLR (PT. 814) 475; ‘K’ LINE INC. VS. KR. INTERNATIONAL (NIGERIA) LTD. (1993) 5 NWLR (PT. 292) 159 AND SOCIETE GENERALE BANK NIGERIA LIMITED VS AFEKORO (1999) 11 NWLR (PT. 628) 521.
The Applicant in the affidavit in support of the motion deposed that he is a legally recognized kingmaker with the constitutional duty and responsibility of selecting the Alakenne of Ikenne but was denied the opportunity to exercise this right in the selection of the 1st Respondent. He deposed that by the provisions of the Alakenne of Ikenne Chieftaincy Declaration of 1998 he was entitled as of right to participate in the selection process.
The 1st Respondent in the Counter-affidavit joined issues with the Applicant on his claim that he was a kingmaker. From the proposed grounds of Appeal it is apparent that the issue of whether the Applicant is a kingmaker or not is one of the issues to be determined in the substantive appeal. See Ground 3 of the Proposed Notice of Appeal.
The law is settled that a Court must avoid the determination of a substantive issue at the interlocutory stage. See CIL RISK & ASSET MANAGEMENT LIMITED VS. EKITI STATE GOVERNMENT (2020) 12 NWLR (PT. 1738) 203 IN RE: ABDULLAHI (2018) 14 NWLR (PT. 1639) 272; GROUP DANONE VS. VOLTIC (NIGERIA) LTD. (2008) 7 NWLR (PT. 1087) 637 AND ODUTOLA HOLDINGS LTD. VS. LADEJOBI (2006) 12 NWLR (PT. 994) 321.
I shall therefore refrain from determining the issue of whether or not the Applicant is a kingmaker. The Applicant has deposed that he is a Kingmaker who was denied the opportunity of participating in the selection of the 1st Respondent. The subject matter of the substantive appeal revolves around the stool of the Alakenne of Ikenne. Having given a thorough consideration to the affidavit evidence, the submission of counsel and the judgment of the lower Court the subject of this appeal, I am of the view that the applicant has shown sufficient interest in the suit the subject matter of this appeal and that it would be in the overall interest of justice to allow him appeal against the judgment, as an interested party.
This second issue is also resolved in favour of the Applicant.
Having resolved the two issues in favour of the Appellant, I hereby order as follows:
1) Leave is granted to the Applicant, Chief Folarin Amuroge to appeal as an interested party against the decision of the Ogun State High Court, Sagamu Division, in suit No: HCS/62/18 BETWEEN OBA OLUWAYOMI ADEMOLA ODENEYE–ADEYIGA VS. PRINCE MOSUDI ADEYINKA ONAKADE AND TWO OTHERS delivered on the 3rd of June 2020.
2) Time is extended until today for the Applicant to seek leave to Appeal against the decision of the Ogun State High Court, Sagamu Judicial Division in SUIT NOS. HCS/62/18 BETWEEN OBA OLUWAYOMI ADEMOLA ODENEYE-ADEYIGA VS. PRINCE ADEYINKA ONAKADE & TWO OTHERS delivered on 3rd of June 2020.
3) The Applicant is granted leave to Appeal against the judgment of the Ogun State High Court in SUIT NOS. HCS/62/18 BETWEEN OBA OLUWAYOMI ADEMOLA ODENEYE–ADEYIGA VS. PRINCE MOSUDI ADEYINKA ONAKADE & TWO OTHERS delivered on 3rd of June 2020.
4) Time is hereby extended by 14 days from today for the Applicant to file his Notice of Appeal and grounds of Appeal.
YARGATA BYENCHIT NIMPAR, J.C.A.: I had the opportunity of reading the draft copy of the Ruling of my learned brother, FOLASADE AYODEJI OJO, JCA. I entirely agree with his reasoning and the conclusions arrived at that this application is meritorious and should be allowed. Further on this, it is trite law that there is a distinction between an order dismissing a case and order striking out the matter as well as the consequence of the two modes of terminating a matter. The striking out of a case by a Court invariably leaves the Plaintiff with the option of reviving the case and having it placed back on the cause list at anytime subject to showing good cause. On the other hand, an order for dismissal does not allow for the resuscitation of the case in question. See RAHEAL FAKO & ANOR V. UNITED BANK FOR AFRICA PLC (2013) LPELR-20312(CA).
In this instant case, the Applicant withdrew the Motion on Notice filed on 30th June, 2021 before arguments were taken and the Court struck out the matter on 10th January, 2022, hence, the Applicant has the option of filing a fresh application or reapply for relisting of the one that was struck out because the order made upon the application for withdrawal was not one made on the merit. See the case of CHIEF GREAT OVEDJE OGBORU & ANOR V. DR. EMMANUEL EWETAN UDUAGHAN & ORS (2013) LPELR-20305(SC) wherein the Court held thus:
“The general principle of law as rightly submitted by the learned Counsel Dr. Osuala is well established that a party whose motion is struck out has the option and is at liberty to either file a fresh application or apply that the one struck out be re-listed; AKPAN V. EKPO (SUPRA)”. PER OGUNBIYI, JSC.
Consequent upon the above and the more elaborate reasons advanced in the Ruling. I also find that the instant application has merit and it is accordingly granted. I abide by the consequential orders contained in the lead Ruling.
ABBA BELLO MOHAMMED, J.C.A.: I have read a draft of the lead ruling just delivered by my learned brother, FOLASADE AYODEJI OJO, JCA. For all the reasons stated therein, all of which I adopt as mine, I also hold that the Applicant has met the conditions for the grant of leave to appeal as an interested party. In consequence, I also find this application meritorious and grant same in the terms stated in the lead ruling just delivered.
Appearances:
OLUMIDE SOFOWORA, SAN, with him, MUYIWA ESAN For Appellant(s)
CHIEF A.B. OGEDENGBE – for 1st Respondent
R.B. KADIRI, Administrator General, Ogun State Min. of Justice, with him, F.O. SHITTU Asst. Chief State Counsel – for 2nd and 3rd Respondents For Respondent(s)