TITLLEY GYADO AND COMPANY NIGERIA LIMITED ANOR v. ASSETS MANAGEMENT CORPORATION OF NIGERIA
(2014)LCN/6788(CA)
In The Court of Appeal of Nigeria
On Thursday, the 23rd day of January, 2014
CA/J/102/2012
RATIO
WHETHER MINOR CONTRADICTIONS IN THE EVIDENCE OF A WITNESS WOULD AFFECT THE CREDIBILITY OF A WITNESS
it is settled law that contradiction in the evidence of a witness that would be fatal must relate to material facts and be substantial. It must deal with the real substance of a case. Minor or trivial contradictions do not affect the credibility of a witness and cannot vitiate a trial- Osetola Vs State (2012) 17 NWLR (Pt 1329) 251, Osung vs State (2012) 18 NWLR (Pt 1332) 256, Famakinwa vs State (2013) 7 NWLR (Pt 1354) 597, Musa Vs State (2013) 9 NWLR (Pt 1359) 214 and Iregu Vs State (2013) 12 NWLR (Pt 1367) 92. In Theophilus Vs The State (1996) 1 NWLR (Pt.423) 139, the Supreme Court at 155 A-B put the point thus:
“…It is not every trifling inconsistency in the evidence of the prosecution witnesses that is fatal to its case. It is only when such inconsistencies or contradictions are substantial and fundamental to the main issues in question before the Court and therefore necessarily create some doubt in the mind of the trial court that an accused is entitled to benefit therefrom.” Per HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A
WORDS AND PHRASES: CONTRADICTIONS
Now, contradiction means lack of agreement between two related facts. Evidence contradicts another piece of evidence when it says the opposite of what the other piece of evidence has stated and not where there are mere discrepancies in details between them. Two pieces of evidence contradict one another when they are inconsistent on material facts while a discrepancy occurs where a piece of evidence stops short of, or contains a little more than what the other piece of evidence says or contains – Bassey Vs State (2012) 12 NWLR (Pt 1314) 209, Jeremiah Vs State (2012) 14 NWLR (Pt 1320) 248 and Egwunmi Vs State (2013) 13 NWLR (Pt.1372) 525. Per HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A
DISTINCTION BETWEEN PROOF BEYOND REASONABLE DOUBT AND PROOF BEYOND ALL IOTA OF DOUBT
It is axiomatic in our jurisprudence that the burden of proving that any person has committed a crime or a wrongful act rests on the person who asserts it and this is, more often than not, the prosecution. Where the commission of crime by a party is in issue in any proceedings be it civil or criminal, it must be proved beyond reasonable doubt. In discharging the burden, all the essential ingredients of the crime alleged must be proved beyond reasonable doubt. The burden never shifts. Therefore, if in a criminal trial, on the whole of the evidence before it, the court is left in a state of doubt, the prosecution would have failed to discharge the burden of proof which the law lays upon it and the defendant will be entitled to an acquittal. It must, however, be stated that proof beyond reasonable doubt is “not proof to the hilt” and is thus not synonymous with proof beyond all iota of doubt. It simply means establishing the guilt of the defendant with compelling and conclusive evidence to a degree of compulsion which is consistent with a high degree of probability. Thus, if the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence “of course it is possible, but not in the least probable”, the case will be said to have been proved beyond reasonable doubt – Sabi Vs State (2011) 14 NWLR (Pt 1268) 421, Iwunze Vs Federal Republic of Nigeria (2013) 1 NWLR (Pt.1324) 119, Njoku Vs State (2013) 2 NWLR (Pt 1339) 548, Osuagwu Vs State (2013) 5 NWLR (Pt 1347) 360, Ajayi Vs State (2013) 9 NWLR (Pt 1360) 589. Per HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A
JUSTICES
TIJJANI ABDULLAHI Justice of The Court of Appeal of Nigeria
ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria
IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria
Between
1. TITLLEY GYADO AND COMPANY NIGERIA LIMITED
2. SENATOR JACOB TILLEY GYADO Appellant(s)
AND
ASSETS MANAGEMENT CORPORATION OF NIGERIA Respondent(s)
IBRAHIM SHATA BDLIYA, J.C.A. (Delivering the Lead Ruling): The appellants/applicants brought this application pursuant to Orders 7 rule (1); 6 rule (2) of the Court of Appeal Rules, 2011, praying the Court for the following:
1. AN Order of this Honourable Court granting Leave to the Appellants/Applicants to amend their separate Notices of Appeal dated 16th day of March, 2012 attached hereto as Exhibits “OE1” and “OE1A” respectively as contained in pages 186 to 190 and Pages 193 and 194 of the Record of Appeal for purposes of joining the name of Senator Jacob Tilley Gyado to the Notice of Appeal contained in Pages 186 to 192 as the 2nd Appellant and the name of Tilley Gyado and Company Nigeria Limited to the Notice of Appeal contained in Pages 193 to 194 as the 2nd Appellant respectively to properly reflect the parties on record at the Lower Court and the Record of Appeal transmitted to this Honourable Court.
2. An Order of this Honourable Court amending the separate Notices of Appeal in the manner as shown in the proposed amended Notices of Appeal attached hereto and marked Exhibit “OE2′ and “OE2A” respectively.
The grounds upon which the application is predicated are these:
1. Both Senator Jacob Tilley Gyado and Tilley Gyado and Company Nigeria Limited are parties on record at the Lower Court and the Record of Appeal transmitted to this Honourable Court.
2. Both the name of Senator Tilley Gyado and Tilley Gyado Company Nigeria Limited were inadvertently omitted as Appellant by the Counsel who prepared the separate Notices of Appeal filed in this Appeal.
3. The omission of the names of Senator Jacob Tilley Gyado and Tilley Gyado and Company Nigeria Limited in the separate Notices of Appeal contained in Pages 184 to 192 and 193 to 194 respectively is not of their making but the inadvertence of Counsel.
4. The Leave of this Honourable Court is needful to amend the respective Notices of Appeal and include the name of Senator Jacob Tilley Gyado and Tilley Gyado Company Nigeria Limited as 2nd Appellant in the two Notices of Appeal respectively.
5. The Leave of this Honourable Court is also needful to deem the amended Notice of Appeal as properly amended, filed and served on the Respondent.
On the 20th of November, 2011 the application of the appellants/applicants was heard by the Court. Umoh (SAN) of learned Senior Counsel to the respondent raised an objection to the competency of the application of the appellants/applicants for having been filed by parties who were strangers to the Notices of Appeal contained on pages 186 to 192 and pages 193 to 194 of the record of appeal. It was Learned Senior Counsel’s further submission that the application before the Court did not arise nor was it related to any of the Notices of Appeal referred to on the aforesaid pages of the record of appeal. It was his contention that the application was not predicted on any Notice of appeal filed by the appellants/applicants or any other person(s) for that matter. Learned Senior Counsel further submitted that two (2) different Notices of appeal were filed by against the judgment of the trial court as could be found on pages 186 to 192 and 193 to 194 of the record of appeal. That there was no order sought and or obtained to consolidate these appeals to warrant the filing of a single application for an amendment of same. Learned Senior Counsel adumbrated that an appellate Court can not entertain an appeal with parties who were not in the case from which the appeal emanated. In support of his submissions supra, Learned Senior Counsel cited and relied on the following authorities SS (Nig.) Ltd v. As (Nig) NWLR (Pt. 1338) p. 516 @ 620; PPA v. INEC (2012) 13 NWLR (Pt. 1317) P. 215 @ 237; AGF v. ANPP (Pt. 844) P. 675 @ 683 and Adelakun v. Arakun (2006) 11 (Pt. 992) P. 625 @ 646. In conclusion, Learned Senior Counsel did urge the Court to dismiss the application of the appellants/applicants for being incompetent as canvassed supra.
Shaakaa Esq. of learned Counsel to the appellants/applicants responded to the submissions of Umoh (SAN), of learned counsel on the competency of the application for an amendment of the two (2) Notices of appeal and submitted that wrongly headed Notice of appeal is a mere irregularity which can be cured in order to do substantial justice to the parties thereto. The case of Cleb-John (Nig.) Ltd. v. Tokini (2008) 13 NWLR (Pt. 1104 P. 422 @ 440 – 441 was cited to reinforce the submission supra. It was his further submission that an amendment includes substitution or rewriting which can be granted if no injustice would be done to the parties. The cases of Oluriun v. Falana (2011) 17 NWLR (Pt. 1275) p. 207 @ 220 – 221 and Osasama v. Ajayi (2004) 14 NWLR (Pt. 894) p. 527 @ 543 were cited and relied upon to buttress the submissions supra.
In conclusion, learned Counsel adumbrated that there are competent Notices of Appeal filed by the appellants/applicants before the Court upon which the instant application is predicated notwithstanding the irregularity in the names of the parties, thereto. That once there is a competent grounds of appeal, any irregularity in the names of the parties to the Notice of Appeal can be rectified by an amendment. The case of Ascold (Nig.) Ltd. v. Word Green (2010) 3 NWLR (Pt. 1184) P. 302 @ 321 – 322 was cited and relied upon to reinforce the submissions supra. The Court has been urged to overrule the objection to the competency of the application of the appellants/applicants and proceed to hear same on the merit.
At this juncture, I think, it is apposite to refer to the parties to the suit, commenced before the trial Court wherein the judgment appealed against was delivered on the 8th of March, 2002; the Notices of appeal filed against the said judgment to this Court; and the parties to this application for the amendment of the Notices of appeal in order to resolve the issue of whether the said application is competent or not by reason of improper parties. The suit before the trial Court was commenced by an originating summons under the Undefended List as could be found on pages 38 to 40 of the record of appeal. The parties to the suit No. PLD/J/599/2010 were “Intercontinental Bank Plc as plaintiff and Tilley Gyado & Co. (Nig.) Ltd and Senator Jacob Tilley Gyado as defendants. On page 186 of the record of appeal is a Notice of Appeal filed against the judgment of the trial Court. The parties to the said Notice of Appeal are Tilley Gyado and Company (Nig.) Ltd as the appellant and Intercontinental Bank Plc. as the respondent. On page 193, there is another Notice of Appeal filed by Senator Jacob Tilley Gyado as the appellant and Intercontinental Bank Plc. as the respondent. The Motion on Notice filed on the 15th of November, 2013 for the amendment of the two Notices of appeal on pages 186 and 193 are Tilley Gyado & Co. (Nig.) Ltd. and Senator Jacob Tilley Gyado as Appellants/Applicants and Assets Management Corporation of Nigeria as Respondent.
There is an affidavit filed in support of the application (Motion on Notice) dated 14th November and filed on the 15th of November, 2013 for an order granting leave to amend the Notices of appeal aforesaid. Paragraphs 5, 6, 7 and 8 of the said affidavit are germane to the determination of whether the application of the appellants/applicants to amend the said Notices of Appeal is competent or not, having regard to the parties thereto. The averments in these paragraphs are reproduced hereunder for easy comprehension:
“5. That the Lower Court delivered ruling in Suit No. PLD/J/599/2010 between Intercontinental Bank Ltd. v. Tilley Gyado Co. (Nig.) Ltd. and Senator Tilley Gyado on 8/3/202 which decision is being appealed against in this Appeal.
6. That Counsel on behalf of the Appellants/Applicants filed their separate Notices of Appeal on 20th day of March, 2012 as contained in Pages 186 to 192 and 193 to 194 of the Record of Appeal transmitted to this Honourable Court but inadvertently failed to include the name of Senator Tilley Gyado and Tilley Gyado and Company Nigeria Limited as 2nd Appellant respectively in the separate Notices of Appeal filed in this Appeal.
7. That both Senator Jacob Tilley Gyado and Tilley Gyado and Company Nigeria Limited were parties on record at the Lower Court and their names reflected on the Record of Appeal transmitted to this Honourable Court as parties on record.
8. That the omission of the names of both Senator Jacob Tilley Gyado and Tilley Gyado and Company Nigeria Limited is not of their own making but the inadvertence of Counsel.”
From the foregoing, it is crystally clear and not in dispute, that the parties to the suit No. PLD/J/599/2010 commenced by an originating summons (pages 38 to 40 of the record); the parties to the Notices of Appeal on pages 186 and 193 of the record of appeal and the parties to the Motion on Notice filed on the 15th of November, 2013, seeking for leave of Court to amend same, are not same. The parties to the Motion on Notice (the application by the appellants/applicants) now under consideration by this Court are not the same. Whereas the parties to the Notices of Appeal on pages 186 and 193 of the record of appeal are Tilley Gyado And Company (Nig.) Ltd. as appellant and Intercontinental Bank Plc. as respondent, the parties to the Motion on Notice filed on 15th November, 2013 are Tilley Gyado & Co. (Nig.) Ltd and Senator Jacob Tilley Gyado as Appellants/Applicants and Assets Management Corporation of Nigeria as Respondent.
The law is trite, an action or suit instituted or commenced by wrong or improper parties can not be sustained in law, same would be struck out for being incompetent. Therefore, dry action, whether an originating one or an appellate one, if commenced or initiated by wrong or improper parties would be incompetent in law. I find support for the aforesaid proposition of the principles of law in the case of Adelakun v. Oruku (2006) 11 NWLR (Pt. 992) P. 625 @ 646, wherein it was held that an appeal filed before an Appellate Court which had different parties from that at the trial Court can not be competent in law since such an appeal can not be said to have been predicated on the same suit. In that case, at the trial Court, the parties were Mr. Nurudeem Oruku (for himself and on behalf of the estate of late Alhaji Chief Jimo Oruku, deceased) and Mr. Moshood Adelakun (trading under the name and style of Adelac Nigeria Company), while at the Appellate Court, the parties were stated as Moshood Adelakun and Nurudeen Oruku. It was held that the appeal to the Appellate Court was not predicated upon or arose from the suit at the trial Court, therefore it was incompetent.
In the application at hand, the parties in the Notices of Appeal on pages 186 and 193 of the record of appeal are Tilley Gyado And Company (Nig.) Ltd. v. Intercontinental Bank Plc. and in the Notice of Appeal on page 193 the parties are senator Jacob Tilley Gyado and Intercontinental Bank whereas the parties in the application filed on 15th November, 2013 to amend the Notices of appeal aforesaid are Tilley Gyado & Co. (Nig.) Ltd., Senator Jacob Tilley Gyado as applicants and Assets Management Corporation of Nigeria as respondent. It is also worthy of note that the parties at the trial court were Intercontinental Bank Plc and Tilley Gyado & Co. (Nig.) Ltd and Senator Jacob Tilley Gyado. The parties in the Notices of Appeal on pages 186 and 193 of the record of appeal are radically different from the parties to the application (Motion on Notice) filed on the 15th of November, 2013 seeking leave of this Court to amend the Notices of Appeal aforesaid. I am therefore in full agreement with Umoh (SAN) of learned Senior Counsel to the respondent when he submitted that the application of the appellants/applicants filed on the 15th of November, 2013 was not predicated on nor related to the Notices of Appeal contained on pages 186 and 194 of the record of appeal nor on any Notices of Appeal for that matter. The said application is therefore not competent in law. I so hold. The net result is that the said application is incompetent and liable to be struck out. I hereby make an order striking out the application (Motion on Notice) filed on 15th of November, 2013 for being incompetent.
TIJJANI ABDULAHI, J.C.A.: I have had the privilege of reading in draft the lead Ruling of my learned brother, I. S. Bdliya, J.C.A. just delivered. I am in complete agreement with his reasoning and conclusions arrived thereat. I have nothing more to add. I too hold the view that the application is incompetent and ought to be struck out. I strike it out accordingly.
ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I have had the privilege of reading in draft the lead ruling delivered by my learned brother, Bdliya, J.C.A. I fully agree that there is no merit in this application. I too would strike it out for being incompetent and an abuse of court process.
Appearances
Dr. D. S. Shaakaa – Appellants/ApplicantsFor Appellant
AND
Solomon Umoh (SAN) with Kwasum, Okonkwo Esq.For Respondent
