Maduka Kalu & Ors. V. Chima Okereke Chima & Anor. (2007)
LawGlobal-Hub Lead Judgment Report
RHODES-VIVOUR, J.C.A.
This is a land case. Three suits to wit: HU/26/76, HU/45/76, and HU/52/79 were consolidated and heard by D.E. Njiribeako, J. sitting in the Imo State High Court, Umuahia Judicial Division.
The respondents were the plaintiffs in suits Nos. HU/26/76 and HU/52/79 and the defendants in suits No. HU/45/76. The dispute was land in Amankalu, Alayi Bende Local Government Area within the Umuahia Judicial Division.
In the three suits consolidated both sides claim declaration that they are the customary occupant of the land in dispute, special and general damages for trespass and injunction.
After hearing the parties the learned trial Judge entered judgment in favour of the plaintiff/respondents.
Dissatisfied with the judgment of the learned trial Judge the defendants appealed to this court.
Briefs of argument were duly filed and exchanged by counsel representing the parties in this appeal.
In his brief, learned counsel for the appellant formulated four issues for determination:
- Whether the judgment over suits HU/26/76, HU/45/76 and HU/52/79 as consolidated is valid when only suits HU/26/76 and HU/45/76, really consolidated.
- Whether the Asukwu land the plaintiffs showed in their plan, exh. A, is the same area of land as that involved in the previous Native or Customary Court cases, in particular exhibit D in C.S. 154/52.
- Whether the learned trial Judge correctly evaluated the respective cases of the parties based on their pleadings and evidence before him.
- Whether the learned trial Judge correctly directed himself on the law of res judicata.
Learned counsel for the respondent also formulated four issues which are similar to the issues formulated by the appellant. They read:
- Whether suits No. HU/26/76, HU/45/76, and HU/52/79 were validly consolidated, heard and determined by the judgment of the Honourable Court.
- Whether the Asukwu land which the respondents (the plaintiffs) showed in their survey plan, exhibit A in these proceedings is the same as that involved in the previous cases in the Alayi Native Court and the D.O’s Appeal Court between the parties with particular reference to exhibits ‘C’, ‘D’ and ‘E’ (case between the respondents and Amato people)
- Whether the Honourable trial Judge correctly evaluated the cases presented by the parties based on their pleadings and evidence before him.
- Whether the learned trial Judge correctly applied the doctrine of estoppel per rem judicatam based on exhibits ‘C’ and ‘B’ in the proceedings.
On 23/1/07 at the hearing, learned counsel for the appellants, C.N. Achinuhu, Esq. adopted his brief dated on 9/6/95 and urged us to allow the appeal.
Learned counsel for the respondent, S. Uzodinma, Esq. adopted his brief filed on 11/9/95 and urged us to uphold the judgment of the trial court and dismiss the appeal.
In the court below three suits were consolidated. They are suits Nos. HU/26/76, HU/45/76, and HU/52/79. Page 102 of the record of appeal is clear that the said suits were consolidated. It reads:-
” … By consent of counsel on both sides, the three suits were consolidated because the land in dispute is the same although called by different names a pattern which is all too familiar on land cases.”
On 23/5/90 the learned trial Judge delivered judgment on the consolidated suits.
I must now, highlight how judgment in consolidated suits are delivered and the grave error of the learned trial Judge delivering only one judgment.
Consolidated suits are tried and resolved in the same proceeding, but it must be noted that each suit remains separate and distinct and its own judgment must be given separately at the end of the common trial. The reasoning being that the consolidation of suits does not render evidence accepted in one suit ipso facto evidence in the other. See – Dugbo & Ors. v. Kporoaro & Ors. (1958) SCNLR 180, (1958) WNLR p. 73; Iloabuchi v. Ebigbo (2000) 8 NWLR (Pt. 668) 197, (2000) 4 SCNJ p. 46; Diab Nasr v. Complete House Enterprises (Nig.) Ltd. (1977) 5 SC p. 1.
My Lords, it is well settled that where procedural irregularities that turn out to be fundamental, are clear on the records of appeal, as in this case where one judgment was delivered for three consolidated suits instead of three separate judgments for each of the three suits, this court should make appropriate corrective orders and directives. Accordingly the case is hereby remitted to the Chief Judge of Abia State for trial de novo.
There shall be no order on costs.
Other Citations: (2007)LCN/2320(CA)
