HON. PRINCE NICHOLAS UKACHUKWU v. HON. BARRISTER NNAMDI EZIKE & ORS
(2014)LCN/6879(CA)
RATIO
PRACTICE AND PROCEDURE: CONDITIONS TO SATISFY IN AN APPEAL AGAINST THE DECISION OF A TRIAL COURT
There is no doubt that Order 7 Rule 10 (2) of the 2011 Court of Appeal Rules prescribed the content and requirement of an application for enlargement of time within which to appeal to this Court. It states that “every such application shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period, and by grounds of appeal which prima facie show good cause why the appeal should be heard.”
It is glaring from this provision that two conditions must be cumulatively satisfied by the content of every application as follows-
1. Good and substantial reasons for failure to appeal within the prescribed time.
2. Grounds of appeal which prima facie show good cause for the appeal to be heard.
See MINISTER OF PETROLEUM & MINERAL RESOURCES & ANOR V. SHIPPING LINE (NIG) LTD (2010) 12 NWLR (pt.1208) 201 SC. Per EMMANUEL AKOMAYE AGIM, J.C.A
PRACTICE AND PROCEDURE: WHETHER AN IRREGULAR OR INVALID SERVICE OF THE ORIGINATING PROCESS ON A PARTY CAN JUSTIFY FAILURE TO TAKE ANY STEPS IN THE PROCEEDINGS BEFORE JUDGMENT.
A party, who is wrongly served a process and therefore having been made aware of the pendency of a proceeding, can apply to the court in which the proceedings is pending to set aside the said service on him. Such a step will help prevent the court from proceeding with the case in the belief that the said party has been served. If the party chooses not to participate in the proceedings because he considers that the mode of service was wrong, he exposes himself to the risk of the case proceeding behind him. The better practice is to enter the proceedings and protest the mode of service on him and not to stay away and claim not to be aware of such process or proceedings. In the light of the foregoing, I hold that the only reason given by the applicant for not appealing within time is not good and substantial.
The result is that this application has not complied with one of the two requirements of Order 7 Rule 10(2). This result would have ended this application considering that, as the Supreme Court held in MINISTER OF PETROLEUM & MINERAL RESOURCES V. EXPO-SHIPPING LINE (NIG) LTD (supra), the rules require both conditions to be fulfilled by such application. However, the Supreme Court in SHITTU & ANOR v. OSIBANJO & ANOR. IN RE ADEWUNMI & ORS (1988) 7 SC (PT. 111) 1 held that where the grounds of appeal show good cause why the appeal should be heard, the lack of good and substantial reason should not prevent the grant of the application in the interest of justice.
Nnamani, JSC therein said- “The other point I should quickly deal with is Learned Counsel for the respondents’ submission that once the Court of Appeal was not satisfied with the reasons for delay in bringing the application, it did not need to bother whether the proposed grounds of appeal were arguable or not. With respect, this is a misconception of the true meaning of Order 3 Rule 4(2) of the Court of Appeal Rules. In all the cases in which the Rule, or Order 7 Rule 4(2) of the 1977 Supreme Court Rules (now Order 2, Rules 31(2) 1985 Rules) which is in pari material with it has been considered, it has always been assumed that the two arms of the rule are to be considered i.e. good and substantial reasons for not appealing within the prescribed period and grounds of appeal which prima facie show good cause why the appeal should be heard.
What can be said correctly, in my view, is that an applicant must succeed on both legs if the application is to be granted. It does seem to me that in an application for extension of time to apply for leave to appeal and to appeal, it is of the essence that the proposed grounds of appeal are worthwhile. It is this that would determine whether it is just that the application be granted. If the proposed grounds are substantial, they are bound to weigh on the mind of the Court in deciding its attitude to such delay as there may be in bringing the application. Per EMMANUEL AKOMAYE AGIM, J.C.A
