Tuesday, 18 April 2017

Conditional appearance (explained)


INTRODUCTION
Conditional appearance is a protest made in court to challenge non service of court process.
The entry of conditional appearance is an appearance under protest and usually means an appearance to object to the court's jurisdiction, in this case the non-service of originating processes on the defendant/appellant. The issue of conditional appearance must be addressed by the trial judge before he proceeds to hear any application. It is only when the defendant is properly served originating process that his appearance becomes unconditional by implication and the court becomes competent to hear and resolve the issue of proper court to hear the merits of the case. Per Rhodes-Vivour, JSC
Compagnie Generale De Geophysique Nig Ltd v. Aminu [2015] 2-3 SC 75 at 92
The entry of conditional appearance is an appearance under protest and usually means an appearance to object to the Courts jurisdiction. On the other hand the entry of unconditional appearance conveys the clear impression that the party concerned has no objection to the suit, and that includes, no objection to the way the suit is/was commenced. I must say straightaway that the appellant as 3rd defendant entered unconditional appearance to this suit. Entry of unconditional appearance means that he had no objection to the suit as filed. Per Rhodes-Vivour, JSC
Emeka v. Okadigbo [2012] 7 SC (Pt. 1) 1at 47A conditional appearance is essentially an appearance subject to jurisdiction. Challenges to jurisdiction are usually based on whether the offence, tort or breach of contract was comitted in the relevant jurisdiction of the Court, that there is a fatal defect in the summons, that a higher court has session of the substantial matter or that the matter is non-justicable.

As a conditional appearance is a challenge to jurisdiction, it must, of necessity, be made before the Court hears any submissions, so even applying to adjourn a summons will affect your ability to challenge jurisdiction.

In summary, conditional appearance is  a protest appearance made to challenge the jurisdiction of the court to hear a matter and must be made before the court hears any other submissions.

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