SHELNI V BALA

SHELNI V BALA


IN THE COURT OF APPEAL
IN THE JOS JUDICIAL DIVISION
HOLDEN AT JOS

ON FRIDAY, 25TH MAY, 2018


Suit No: CA/J/32M/2017(R)

CITATION:

Before Their Lordships:

UCHECHUKWU ONYEMENAM, JCA

HABEEB ADEWALE OLUMUYIWA ABIRU, JCA

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, JCA


BETWEEN

YAKUBU SHELNI
(APPLICANT)

AND

USMAN BALA
(RESPONDENT)


PRONOUNCEMENT


A. APPEAL
1. Enlargement of Time to Appeal – The effect of Order 6 Rule 9 (1) of the Court of Appeal Rules, 2016

By Order 6 Rule 9 (1) of the Court of Appeal Rules, 2016; the Court has the power to enlarge the time provided by the Court’s Rules for the doing of anything to which the Court’s Rules apply except as it relates to the taking of any step or action under Order 16.

Order 6 Rule 9(2) provides thus:

“Every application for an enlargement of time within which to appeal, 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. When time is so enlarged a copy of the Order granting such enlargement shall be annexed to the notice of appeal.”

From the above, this Court has the discretion to enlarge time for an Applicant to appeal out of time but in exercising its discretion whether or not to grant an application for extension of time within which to appeal, the Court shall ascertain whether;
(1) The Applicant has in his affidavit in support of his motion on notice established good and substantial reasons for failure to appeal within the period prescribed;

(2) The grounds of appeal at first sight, on first appearance show good cause why the appeal should be heard.

These two conditions must be satisfied before the grant of an application for extension of time within which to appeal outside the prescribed time. Yesufu V. Cooperative Bank Ltd. (1989) 3 NWLR (PT. 110) 483. The reasons proffered by the Applicant for his failure to file his appeal within the stipulated time are as per the grounds of the application and particularly at paragraphs 3 and 4 of the affidavit in support of the motion. For ease of reference I shall reproduce paragraphs 3 and 4 of the affidavit.

The said paragraph states thus:

3. “That I was informed by the Applicant herein on the 10th day of May, 2017 in our chambers at about 2.00 pm in the course of briefing, of which I verily believe to be true as follows:

(a) That he filed an appeal before the Borno State High Court sitting in its appellate jurisdiction in Appeal No. BOHC/BU/CVA/2/14 against the judgment of the Upper Sharia Court Askira

(b). That as of the time judgment was delivered at the lower Court, the Applicant’s community in Askira/Uba Local Government Area which is a distance of about 250 (two hundred and fifty) kilometres from the state capital Maiduguri was overrun by the dreaded Islamic Terrorist group the “Boko Haram”

(c) That owing to the foregoing, the Applicant was not in Court when the said judgment was delivered as he and his family had to flee for their lives and in the process they lost all forms of communication, the result of which the Applicant lost touch with his counsel at the lower Court.

(d) That due to the volatile activities of the said “Boko Haram” it was unsafe for them to move around as the Applicant and members of his family were made to relocate to Yola, Adamawa State.

(e) That by the time the Applicant got to find out the outcome of the judgment of the lower Court, he took the Court judgment to his solicitor, Messrs Freedom chambers, who informed him that he was already out of time to file his appeal, hence this application

4. That I was informed by J.I.Onyilo Esq. on the 10th day of May 2017 in our Chambers at about 2.00 pm in the course of briefing of which I verily believe same to be true as follows:

(a) That he has earlier filed the present application before this Court, however, the said application was struck out on 4th day of May, 2017 for being incompetent, hence this present application.

(b). That he has already prepared the said Notice and Grounds of Appeal on behalf of the Applicant in terms of Exhibit “A” attached hereto and equally the judgment of the lower Court in terms of Exhibit “B” is accompanying this application.

(c). That the Applicant has a good and arguable grounds of appeal.”

On the first condition as s*et out above, for a reason to be adjudged good to warrant the grant of an application for an extension of time within which to appeal, the reason must be sound, reliable, well found, adequate and sufficient under the law to persuade the Court to exercise its discretion in favour of an applicant. Meanwhile, a reason is substantial when it is such that will help an applicant establish the fact that he is entitled to the grant of his application. It is a reason that a reasonable mind could accept as adequate to support a conclusion.

On the second twin condition for the grant of an application for extension of time within which to appeal, which is that the Grounds of Appeal must prima facie show good cause why the appeal must be heard. The Applicant only needs to show that the Grounds of Appeal are arguable and not frivolous. He does not need to show that the Grounds of Appeal are such that the appeal will at all events succeed. Yesufu V. Co-Operative Bank (Supra). This condition requires the Court to assess the persuasiveness of the Grounds of Appeal in relation to the judgment or ruling sought to be appealed against. Lauwers Import-Export V. Jozebson Industries Ltd. (1988) 3 NWLR (PT. 83) 429; Blue-Chip Acquisition And Investment Co. Ltd. V. Zenith Bank Plc. & Ors (2008) LPELR 8529 (CA). The merit of the proposed Grounds of Appeal shall not be delved into while considering an application for extension of time to appeal. E.F.P. Co Ltd. V. NDIC (2007) 9 NWLR (PT. 1039) 216; (2007) 3 S.C. (PT. 11) 175; Chief Cyprian Chukwu V. Celestine Omehia & Ors. (2012) LPELR – 9344 (SC). On what is expected of the appellate Court at this stage of the proceedings, the apex Court Per Onnoghen, J.S.C. (now CJN) pronounced:

“It is settled that the duty of the appellate Court in the consideration of the grounds of appeal proposed by the Appellant and filed in support of the application for leave to appeal is limited to whether the grounds of appeal are substantial and reveal arguable grounds. It is therefore not the duty of the Court at that stage to decide the merit of such grounds as filed in support of the application for to do so would amount to deciding the substantive matter in an interlocutory application which the law frowns upon. See: Ibodo V. Enarofia (1980) 5 – 7 S.C. 42; University Of Lagos V. Olaniyan (1985) 1 NWLR (PT.1) 156; Obikoya V. Wema Bank Ltd. (1989) 1 NWLR (PT. 96)157; Holman Bros. (Nig.) Ltd. V. Kigo (Nig.) Ltd. (1980) 8 – 11 S.C. 43; Egbe V. Onogun (1972) 1 ALL NLR (PT. 1) 95; Ojukwu V. Governor Of Lagos State (NO. 1) (1985) 2 NWLR (PT. 10) 806.”

Enyibros Foods Processing Company Ltd. & Anor. V. Nigerian Deposit Insurance Corporation & Anor. (2007) LPELR – 1149 (SC) (PP. 19 – 20, PARAS. F – C ). Per ONYEMENAM, JCA. read in context

2. Enlargement of Time to Appeal – The implication of lengthy delay in filing an application for enlargement of time to appeal

Now to the length of time which it took the Applicant to seek leave to appeal. The judgment of the lower Court was delivered on 10th December, 2014. The Applicant deposed that before the current application he had earlier filed an application which was struck out on 4th May 2017. From the Court’s file it is correct that the Applicant on 27th January, 2017 brought a similar application which was struck out for incompetence. This means it took the Applicant about 2 years and 1 month to bring this application. In an application for extension of time within which to appeal such as this, the length of delay in filing the application cannot be a ground to refuse the grant of the application so long as the Applicant proffers good and substantial reasons to absolve the delay. Union Bank Of Nigeria Plc V. Alhaji Mohammed Ndace (1998) 3 NWLR (PT. 541) 331; Bank Of The North Ltd. V. Ismaila Yusuf Obansa (2010) LPELR 3852 (CA). On this therefore, the Applicant must depose to material facts which are satisfactorily logical and weighty to sway the mind of the Court to grant the application. The law in as much as possible would not support an Applicant with arguable appeal to be shut out from bringing an appeal for the sole reason of delay unless the delay is unduly unwarranted. The Minister Of Petroleum & Mineral Resources & Anor. V. Expo – Shipping Line (Nig.) Ltd (2010) 12 NWLR (PT. 1208) 261 SC; Onashile V. Idowu (1961) SCNJ 16; Hakido Kpema V. The State (1986) 1 NWLR (PT. 17) 369. In the circumstances of this application, I hold that the reasons adduced by the Applicant for the delay in filing his appeal, is satisfactorily logical, good and substantial to sway the mind of the Court to grant this application. Per ONYEMENAM, JCA read in context

3. Enlargement of Time to Appeal – What the Court is not required to consider in an application for enlargement of time to appeal

On the second condition which is that the grounds of appeal must prima facie show good cause why the appeal should be heard. I shall reproduce the Applicant’s Grounds of Appeal without the particulars for ease of understanding.

GROUNDS OF APPEAL: GROUND ONE

The Lower Court erred in Law when it affirmed the judgement of the trial Court without applying or adhering to the law as it relates to prove by traditional history.

GROUND TWO

The Lower Court erred in Law when in affirming the judgement of the trial upper Sharia Court it held thus:

“…in a claim of title to land found on traditional history, it is the sum total of the evidence adduced by a Plaintiff that will be evaluated to see whether the Plaintiff has proved his claim or not… discrepancies in evidence about the length of period a particular ancestor in the chain held the land will not affect the proof of the traditional history…”

GROUND THREE

The Lower Court erred in Law when it affirmed the judgement of the trial Court in the face of resolved controversy surrounding the extent and/or identity of the land in dispute.

GROUND FOUR

The Lower Court erred in Law in upholding the judgement of the Trial Court when it reasoned thus: “the failure to prove the claim of 20 hectares with mathematical accuracy as postulated by the Appellant is not fatal to the claim”

GROUND FIVE

The Lower Court erred in Law by affirming the judgement of the Trial Court without availing the Appellant with the defence of laches and acquiescence.

GROUND SIX

The judgement of the Lower Court is against the weight of evidence.

From the above it is clear that the grounds of appeal herein are basically attack on errors in law by the lower Court in which case an appellate Court will need to consider the alleged errors to ascertain whether the lower Court rightly applied the principles of law in the determination of the issues before him. Let me reiterate that at this point this Court is called upon to determine the grant or refusal of an application for the Applicant to appeal out of time, the Court is not required to look into nor consider the likelihood of the success of those grounds but whether on the face of it at a glance, it portrays a good cause why the appeal must be heard. In which case I am of the view from the grounds reproduced above that they prima facie show good cause why the appeal should be heard. I therefore hold that the application has merit. Per ONYEMENAM, JCA. read in context


LEAD JUDGMENT DELIVERED BY ONYEMENAM, JCA


The Applicant herein was the Appellant at the Borno State High Court sitting in its appellate jurisdiction in Appeal No: BOHC/BU/CVA/2/2014 wherein in a judgment delivered on 10th December, 2014 the Applicant’s appeal before the lower Court was dismissed and the decision of the trial Court affirmed.

The Applicant being dissatisfied with the judgment of the lower Court has brought an application before this Court pursuant to Section 242(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and under the inherent powers of this Court. The Applicant prayed for the following orders:

1. “An Order extending the time within which the Applicant shall seek leave to appeal against the judgment of the Borno State High Court dated the 10th day of December 2014 in appeal No. BOHC/BU/CVA/2/2014.

2. An Order granting leave to the Applicant to appeal against the judgment of the Borno State High Court dated 10th day of December, 2014 in appeal No. BOHC/BU/CVA/2/2014.

3. An Order extending the time for the Applicant to appeal against the judgment of the Borno State High Court dated 10th day of December, 2014 in appeal No. BOHC/BU/CVA/2/2014.

And for such further orders this Honourable Court may deem fit to make in the circumstances.”

The application was founded on five grounds and supported by an affidavit of 6 paragraphs, with two annexures that were marked Exhibits A and B. In opposition, the Respondent filed a counter affidavit of 15 paragraphs. The motion was moved on 28th February, 2018; after the Court was duly satisfied that the Respondent was served hearing notice for the day’s proceedings.

J.I. Onyilo Esq. for Applicant, referred to Motion on Notice filed 11th September, 2017 for trinity prayers. He relied on the grounds for the application and the supporting affidavit particularly paragraphs 3 and 4 of the affidavit with the two annexed Exhibits. He noted that pursuant to the order of Court made on 30th November, 2017, he filed a written address on 14th December, 2017. He adopted his processes, relying on them in urging the Court to grant the application. The learned counsel for the Applicant referred the Court to the Respondent’s counter-affidavit filed on 13th October, 2017; the written address in support of counter affidavit filed 2nd January, 2018; and urged the Court to deem them adopted and relied upon. Ruling was thereafter reserved.

In the written address in support of the motion on notice, Mr. Onyilo learned counsel for the Applicant raised a lone issue for the determination of the application. The issue is:

“HAVING REGARD TO THE AFFIDAVIT EVIDENCE PLACED BEFORE YOUR LORDSHIPS, WHETHER THE COURT CAN EXERCISE ITS DISCRETION IN FAVOUR OF THE APPLICANT”

The learned counsel for the Respondent in the written address in support of the counter affidavit adopted the sole issue. I also adopt the sole issue as the same will settle the dispute.

ARGUMENTS ON THE SOLE ISSUE

Mr. Onyilo noted the twin conditions for the grant of an application of this nature. He referred to: ORDER 7 RULE (2) of the Court of Appeal Rules, Iroegbu V. Okwordu (1990) 6 NWLR PT.159 PG. 643; Doherty V Doherty (1964) 1 ALL NLR PG. 299.

On the first condition, the learned counsel relied on paragraphs 3 and 4 of the Applicant’s affidavit in support of the motion. He contended that the crux of the reason for the delay in filing an Appeal within time by the Applicant is that the Applicant’s community was overrun by the terrorist group popularly referred to as the “Boko Haram” of which they fled for their lives. As a result of the foregoing, the Applicant relocated with his family outside Borno State. Consequently, he lost touch with his counsel being that he lost his contacts while he fled. He deposed that he was not in Court when judgement was delivered in the lower Court.

He also enjoined the Court to take judicial notice of the fact that within the preceding 8 years, the North Eastern Nigeria and Borno State in particular has been ravaged by the activities of the militant group popularly referred to as “Boko Haram.”

The Applicant argued that with the insurgency, what was uppermost in his mind at that point in time was the survival and safety of his family and not the land which is the subject of dispute. That it was after he felt there was relative peace in his community that he reached out to his counsel whose telephone contact he lost while he escaped from the Boko Haram attack. He urged the Court to hold that this satisfied the 1st condition for the grant of his application. As a guide to the exercise of the Court’s discretion the learned counsel referred the Court to: Albishir V. INEC 2010 ALL FWLR PT. 552 PG. 1728 AT PG. 1745 PARAS C-F.

On the second condition, the Applicant’s counsel again referred to the decision of the apex Court in ALBISHIR V. INEC (Supra) at Page 412 Paras A-C, and Page 1745 paras C-F. He urged the Court to hold that the Applicant has a prima-facie good and arguable grounds of appeal. He emphasized that from the avalanche of decided cases it has been held that the length of time in the delay is immaterial, all the applicant needs to do is to ensure that he establishes a good reason for the delay and has a good and arguable ground of appeal.

He urged the Court to grant the application.

Mr. S. Ali, learned counsel for the Respondent in opposition, submitted that for an application of this nature to be granted, the applicant must show special circumstances, which made it impossible or impracticable for him to apply within time. For the meaning of Special circumstances, he referred to: Black’s Law Dictionary tenth Edition by Bryan A. Garner.

He referred to paragraph 3 (a – e) of the affidavit in support of the motion and submitted that the applicant did not show a special circumstance to warrant the grant of his application.

The learned counsel referred to the two conditions that must be fulfilled before a Court can exercise its discretion to grant an application of this nature. He cited: Ojora V. Bakare, (1976) 1 S.C. 47. On the second condition, he argued that in assessing the judgement of the trial Court what an appellate Court ought to consider is whether the decision of the judge is right and not whether his reasons are right. He contended that if the decision is right and only the reasons are wrong, an appellate Court will not interfere with the decision. He relied on: Lebile V. Regd Trustee C & S SCN 13N SCQRT9. He therefore urged the Court to hold that the Proposed Notice and Grounds of Appeal annexed as exhibit B in the affidavit in support of the motion on notice of the Applicant did not raise any reasonable ground to warrant the Court to grant this application.

He urged the Court to dismiss the application.

RESOLUTION OF ISSUE

By Order 6 Rule 9 (1) of the Court of Appeal Rules, 2016; the Court has the power to enlarge the time provided by the Court’s Rules for the doing of anything to which the Court’s Rules apply except as it relates to the taking of any step or action under Order 16. Order 6 Rule 9(2) provides thus:

“Every application for an enlargement of time within which to appeal, 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. When time is so enlarged a copy of the Order granting such enlargement shall be annexed to the notice of appeal.”

From the above, this Court has the discretion to enlarge time for an Applicant to appeal out of time but in exercising its discretion whether or not to grant an application for extension of time within which to appeal, the Court shall ascertain whether;

(1) The Applicant has in his affidavit in support of his motion on notice established good and substantial reasons for failure to appeal within the period prescribed;

(2) The grounds of appeal at first sight, on first appearance show good cause why the appeal should be heard.
These two conditions must be satisfied before the grant of an application for extension of time within which to appeal outside the prescribed time. Yesufu V. Cooperative Bank Ltd. (1989) 3 NWLR (Pt. 110) 483. The reasons proffered by the Applicant for his failure to file his appeal within the stipulated time are as per the grounds of the application and particularly at paragraphs 3 and 4 of the affidavit in support of the motion. For ease of reference I shall reproduce paragraphs 3 and 4 of the affidavit.

The said paragraph states thus:

3. “That I was informed by the Applicant herein on the 10th day of May, 2017 in our chambers at about 2.00 pm in the course of briefing, of which I verily believe to be true as follows:

(a) That he filed an appeal before the Borno Stae High Court sitting in its appellate jurisdiction in Appeal No. BOHC/BU/CVA/2/14 against the judgment of the Upper Sharia Court Askira

(b). That as of the time judgment was delivered at the lower Court, the Applicant’s community in Askira/Uba Local Government Area which is a distance of about 250 (two hundred and fifty) kilometres from the state capital Maiduguri was overrun by the dreaded Islamic Terrorist group the “Boko Haram”

(c) That owing to the foregoing, the Applicant was not in Court when the said judgment was delivered as he and his family had to flee for their lives and in the process they lost all forms of communication, the result of which the Applicant lost touch with his counsel at the lower Court.

(d) That due to the volatile activities of the said “Boko Haram” it was unsafe for them to move around as the Applicant and members of his family were made to relocate to Yola, Adamawa State

(e) That by the time the Applicant got to find out the outcome of the judgment of the lower Court, he took the Court judgment to his solicitor, Messrs Freedom chambers, who informed him that he was already out of time to file his appeal, hence this application

4. That I was informed by J.I.Onyilo Esq. on the 10th day of May 2017 in our Chambers at about 2.00 pm in the course of briefing of which I verily believe same to be true as follows:

(a) That he has earlier filed the present application before this Court, however, the said application was struck out on 4th day of May, 2017 for being incompetent, hence this present application.

(b) That he has already prepared the said Notice and Grounds of Appeal on behalf of the Applicant in terms of Exhibit “A” attached hereto and equally the judgment of the lower Court in terms of Exhibit “B” is accompanying this application.

(c) That the Applicant has a good and arguable grounds of appeal.”

On the first condition as set out above, for a reason to be adjudged good to warrant the grant of an application for an extension of time within which to appeal, the reason must be sound, reliable, well found, adequate and sufficient under the law to persuade the Court to exercise its discretion in favour of an applicant. Meanwhile, a reason is substantial when it is such that will help an applicant establish the fact that he is entitled to the grant of his application. It is a reason that a reasonable mind could accept as adequate to support a conclusion.

On the second twin condition for the grant of an application for extension of time within which to appeal, which is that the Grounds of Appeal must prima facie show good cause why the appeal must be heard. The Applicant only needs to show that the Grounds of Appeal are arguable and not frivolous. He does not need to show that the Grounds of Appeal are such that the appeal will at all events succeed. Yesufu V. Co-Operative Bank (Supra). This condition requires the Court to assess the persuasiveness of the Grounds of Appeal in relation to the judgment or ruling sought to be appealed against.

Lauwers Import-Export V. Jozebson Industries Ltd. (1988) 3 NWLR (Pt. 83) 429; Blue-Chip Acquisition And Investment Co. Ltd. V. Zenith Bank Plc. & Ors (2008) LPELR 8529 (CA). The merit of the proposed Grounds of Appeal shall not be delved into while considering an application for extension of time to appeal. E.F.P. Co Ltd. V. NDIC (2007) 9 NWLR (Pt. 1039) 216; (2007) 3 S.C. (Pt. 11) 175; Chief Cyprian Chukwu V. Celestine Omehia & Ors. (2012) LPELR – 9344 (SC). On what is expected of the appellate Court at this stage of the proceedings, the apex Court Per Onnoghen, J.S.C. (now CJN) pronounced:

“It is settled that the duty of the appellate Court in the consideration of the grounds of appeal proposed by the Appellant and filed in support of the application for leave to appeal is limited to whether the grounds of appeal are substantial and reveal arguable grounds. It is therefore not the duty of the Court at that stage to decide the merit of such grounds as filed in support of the application for to do so would amount to deciding the substantive matter in an interlocutory application which the law frowns upon. See: Ibodo V. Enarofia (1980) 5 – 7 S.C. 42; University Of Lagos V. Olaniyan (1985) 1 NWLR (Pt.1) 156; Obikoya V. Wema Bank Ltd. (1989) 1 NWLR (Pt. 96)157; Holman Bros. (Nig.) Ltd. V. Kigo (Nig.) Ltd. (1980) 8 – 11 S.C. 43; Egbe V. Onogun (1972) 1 ALL NLR (Pt. 1) 95; Ojukwu V. Governor Of Lagos State (No. 1) (1985) 2 NWLR (Pt. 10) 806.” Enyibros Foods Processing Company Ltd. & Anor. V. Nigerian Deposit Insurance Corporation & Anor. (2007) LPELR – 1149 (SC) (PP. 19 – 20, Paras. F – C ).

In the instant application, from the affidavit in its support and the counter-affidavit of the Respondent, the following facts are not in dispute, namely;

(i) That where the Applicant was residing at all material time before judgement was delivered by the lower Court, is a distance of about 250km (two hundred and fifty kilometres) from Maiduguri where the lower Court sat and delivered its judgement.

(ii) Exhibit “B” which is the certified true copy of the judgement of the lower Court indicated that both parties were not in Court when the judgement was delivered.

(iii) That there was entry of Boko Haram militants to where the Applicant was residing.

(iv) That up to date Borno State is still not free from the activities of Boko Haram.

From the reproduced affidavit evidence in support of the application, the reasons for the delay in appealing within time is the insurgency of the deadly terrorist group popularly known as “Boko Haram”. This group entered into the community of the Applicant which caused him to flee with his family to Adamawa State as a result of which he could not attend Court to take his judgment at the lower Court and equally lost most vital contacts including that of his counsel. Clear from the affidavit evidence is equally the fact that by the time relative peace returned to his community, he found out about the lower Court’s judgment and approached his counsel but by that time he was already out of time to file his appeal. These facts as I have stated earlier were not controverted except that the Respondent claimed the activities of Boko Haram in the community were brief though he failed to state how brief. I want to note that no matter how brief the terrorists infiltration into an area is, that will be sufficient to instil fear on anybody of which the most rational reaction will be to take a proactive measure to avert calamity. The minor contention notwithstanding, the activities of Boko Haram in the North East of Nigeria and in Borno State in particular is so notorious that any Court of law in Nigeria would take judicial notice of the insecurity that has at least for the preceding 6 years loomed Borno State. I do hereby take judicial notice of the insurgency in Borno State since about 2013. In my view the activities of Boko Haram in Borno State when the judgment of the lower Court was delivered in December, 2014 was enough to cause the Applicant to relocate from his community thereby not attending Court to know the decision of the lower Court. That coupled with the uncontroverted fact that he also lost contact with his counsel, were enough to lead to the subsequent inability to file his appeal within the time frame. Accordingly, I hold that the activities of Boko Haram in this Applicant’s community were good and substantial reason for the Applicant not to appeal within time.

Now to the length of time which it took the Applicant to seek leave to appeal. The judgment of the lower Court was delivered on 10th December, 2014. The Applicant deposed that before the current application he had earlier filed an application which was struck out on 4th May 2017. From the Court’s file it is correct that the Applicant on 27th January, 2017 brought a similar application which was struck out for incompetence. This means it took the Applicant about 2 years and 1 month to bring this application. In an application for extension of time within which to appeal such as this, the length of delay in filing the application cannot be a ground to refuse the grant of the application so long as the Applicant proffers good and substantial reasons to absolve the delay.

Union Bank Of Nigeria Plc V. Alhaji Mohammed Ndace (1998) 3 NWLR (Pt. 541) 331; Bank Of The North Ltd. V. Ismaila Yusuf Obansa (2010) LPELR 3852 (CA). On this therefore, the Applicant must depose to material facts which are satisfactorily logical and weighty to sway the mind of the Court to grant the application. The law in as much as possible would not support an Applicant with arguable appeal to be shut out from bringing an appeal for the sole reason of delay unless the delay is unduly unwarranted.

The Minister Of Petroleum & Mineral Resources & Anor. V. Expo – Shipping Line (Nig.) Ltd (2010) 12 Nwlr (Pt. 1208) 261 SC; Onashile V. Idowu (1961) SCNJ 16; Hakido Kpema V. The State (1986) 1 NWLR (PT. 17) 369. In the circumstances of this application, I hold that the reasons adduced by the Applicant for the delay in filing his appeal, is satisfactorily logical, good and substantial to sway the mind of the Court to grant this application.

On the second condition which is that the grounds of appeal must prima facie show good cause why the appeal should be heard. I shall reproduce the Applicant’s Grounds of Appeal without the particulars for ease of understanding.

GROUNDS OF APPEAL:

GROUND ONE

The Lower Court erred in Law when it affirmed the judgement of the trial Court without applying or adhering to the law as it relates to prove by traditional history.

GROUND TWO

The Lower Court erred in Law when in affirming the judgement of the trial upper Sharia Court it held thus:

“…in a claim of title to land found on traditional history, it is the sum total of the evidence adduced by a Plaintiff that will be evaluated to see whether the Plaintiff has proved his claim or not… discrepancies in evidence about the length of period a particular ancestor in the chain held the land will not affect the proof of the traditional history…”

GROUND THREE

The Lower Court erred in Law when it affirmed the judgement of the trial Court in the face of resolved controversy surrounding the extent and/or identity of the land in dispute.

GROUND FOUR

The Lower Court erred in Law in upholding the judgement of the Trial Court when it reasoned thus: “the failure to prove the claim of 20 hectares with mathematical accuracy as postulated by the Appellant is not fatal to the claim”

GROUND FIVE

The Lower Court erred in Law by affirming the judgement of the Trial Court without availing the Appellant with the defence of laches and acquiescence.

GROUND SIX

The judgement of the Lower Court is against the weight of evidence.

From the above it is clear that the grounds of appeal herein are basically attack on errors in law by the lower Court in which case an appellate Court will need to consider the alleged errors to ascertain whether the lower Court rightly applied the principles of law in the determination of the issues before him. Let me reiterate that at this point this Court is called upon to determine the grant or refusal of an application for the Applicant to appeal out of time, the Court is not required to look into nor consider the likelihood of the success of those grounds but whether on the face of it at a glance, it portrays a good cause why the appeal must be heard. In which case I am of the view from the grounds reproduced above that they prima facie show good cause why the appeal should be heard.

I therefore hold that the application has merit. The same is granted. I do hereby order:

1. That time is extended within which the Applicant shall seek leave to appeal against the judgment of the High Court of Borno State delivered on 10th December, 2014 in Appeal No. BOHC/BU/CVA/2/2014.

2. That leave is granted the Applicant to appeal against the judgment of the High Court of Borno State delivered on 10th December, 2014 in Appeal No. BOHC/BU/CVA/2/2014.

3. That time is extended for the Applicant to appeal against the judgment of the High Court of Borno State delivered on 10th December, 2014 in Appeal No. BOHC/BU/CVA/2/2014.

4. That Applicant herein is granted 14 days within which to appeal.

5. That parties shall bear their costs.

ABIRU, JCA

I have had the privilege of reading the lead Ruling delivered by my learned brother, Uchechukwu Onyemenam, JCA. His Lordship has considered and resolved the issues in contention on the application of the Applicant seeking for the trinity prayers to appeal against the judgment of the High Court of Borno State in Suit No BOHC/BU/CVA/2/2014 delivered on the 10th of December, 2014 by Honorable Justice H. Y. Mshelia. I agree that there is merit in the application and I abide the consequential orders made therein.

WILLIAMS-DAWODU, JCA

I had the privilege and opportunity of a preview of the Ruling by my learned brother, UCHECHUKWU ONYEMENAM, JCA.

I agree entirely with the reasoning and conclusions reached therein and have nothing else to add. I make no order as to costs.

Appearances:

J. I. ONYILO, Esq. For Appellant(s)

Respondent Counsel absent For Respondent(s)