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

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MUNTAKA-COOMMASSIE, J.C.A. 

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

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

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

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

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

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

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

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

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

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

(b) leave to appeal; and

(c) enlargement of time within which to appeal.

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