It must be stated here that Order 7 Rule 10 (2) of the Court of Appeal Rules 2007 provides for two conditions which must be satisfied conjunctively. The affidavit evidence must disclose good and substantial reasons for failure to appeal or seek leave to appeal within the prescribed time. The proposed grounds of appeal must show good cause why the appeal should be heard. The grounds must be arguable; not frivolous.
The respondent deposed to the fact that he was not informed of the decision of the Army Authority which confirmed his sentence for the offence of conspiracy and his demotion in rank. He was informed later by his co-accused. The grounds of appeal in the proposed grounds of appeal on pages 9-11 of the record of appeal appear, prima facie, arguable. There is ground 4 which complains that the Army Authority, contrary to the finding of the G.C.M went ahead to enter a finding of ‘Guilty’ on the respondent for making false document, punishable under section 90 (d) of AFA Cap. A20 LFN, 2004. To my mind, this is an arguable point.
The court below, resolved issue 1 decoded by the respondent in his favour. I pitch my tent with the court below as it was on a firm stand.
The next point relates to the applicability of the provision of section 2 (a) of the Public Officers Protection Act. The appellant maintained that same applied to foreclose the right of the respondent to approach the lower court for leave to appeal.
On his part, learned counsel for the respondent maintained that the law cannot be employed to gag him from exercising his constitutional right of appeal to the court below.
As stated by learned counsel for the respondent, it is basic that courts do guard their jurisdiction jealously and zealously. As such, any enactment which takes away the rights of the citizen accessing the court are to be construed narrowly against any one claiming its benefit.
The appellant who is trying to cling tenaciously to the law puts obstacles on the respondent’s way by failing to react to his complaint in good time. He was subjected to trauma and he fell sick as contained in his affidavit and further affidavit. This court has held in Abacha v. Spiff (2009) 5 SCNJ 119 at 140 that where a party is prevented from bringing an action or denied the opportunity to sue timeously, limitation law will not apply. The position in the case at hand points to the same direction.
Further, the position here is that the respondent desires to enforce his fundamental right of access to the law court to determine his innocence in the conviction meted out to him by the G.C.M. The right, is as dictated by section 240 of the 1999 Constitution of the Federal Republic of Nigeria. It is unthinkable to imagine that the provision of section 2 (a) of the Public Officers Protection Law can be employed to truncate the respondent’s opportunity to ventilate his grievances to the decision of the G.C.M.
There is no way by which the decision of the G.C.M can be covered from being challenged as constitutionally guaranteed by section 240 of the stated Constitution under the feigned canopy of the provision of section 2 (a) of the Public Officers Protection Act.
In conclusion, I am of the considered opinion that viewed from any angle, this appeal is bound to fail. It lacks merit and, it is hereby dismissed. The Ruling of the court below handed out on 9th February, 2010 is hereby affirmed in its entirety.
