Bennett Ifediorah & Ors. V. Ben Ume & Ors. (1988)

LawGlobal-Hub Lead Judgment Report

NNAEMEKA-AGU, J.S.C.

Two separate suits in a land case were filed in Amawbia-Awka High Court, Anambra State as suit numbers AA/1/76 and AA/19/77 respectively. The plaintiff community in the first suit are the defendant community in the second suit, and vice versa.

After the exchange of pleadings in both cases, the defendants in suit No AA/1/76 (who are plaintiffs in suit No. AA/1/77) applied by a motion on notice for the two suits to be consolidated for hearing, hearing of both cases having been fixed for the 21st, 22nd, 23rd and 24th of November, 1978.

The plaintiffs in suits No. AA/1/76 (who were defendants suit No. AA/19/77) opposed the application. After hearing the motion. the learned trial Judge, Obiesie, J. granted the application, and consolidated the two suits. He based his decision on the following facts, namely:

(i) that pleadings had been duly exchanged;

(ii) that the main purpose of the consolidation was to save costs and time;

(iii) that the two cases under consideration for consolidation were pending in his court;

(iv) that plans Nos. MEC/619/76 and P.O/E/62/77 relate to the same land and that parties rely on them in both suits;

(v) that the parties in the two suits were people from Etitinabo, Unubi, and Umueze, Uga, Villages who sued and were sued by their representatives;

(vi) that from the pleadings filed, common questions of law and of fact were to be resolved; and

(vii) that no confusion would result in the proceedings as a result of the consolidation.

The plaintiffs and defendants in suit No.AA/1/76 were designated plaintiffs and defendants in the consolidated suits.

The plaintiffs appealed against the consolidation of the actions to the Court of Appeal, Enugu Division, on two grounds of appeal. Before the appeal was heard, learned Senior Advocate for the defendants, Mr. Anyamene, S.A.N., filed a notice of a preliminary objection to the appeal in the following words

“TAKE NOTICE that the respondents herein named intend at the hearing of this appeal, to rely upon the following preliminary objection notice whereof is hereby given to you, viz:-

(a) The purported appeal against the order of consolidation by the Court below of two cross-actions, namely, AA/1/76 and AA/19/77, is incompetent in that an appeal does not lie from the said order.

(b) If appeal does lie the purported appeal is not proper before the court in that no leave to appeal was obtained.

AND TAKE NOTICE that the grounds of the said objection are as follows:-

(1) An order of consolidation is not “decision” as defined in S.277(1) of the Constitution, being merely an administrative direction which can be reversed at any time by the Judge that gave it or any other Judge;

(2) An appeal lies only from decisions of a High Court to this Court;

(3) Assuming (but not conceding) that the order is appealable it is at its highest an interlocutory order in respect of which an appeal does not lie as of right but only by leave of the Court below or of this Court: SS.220(1)(b) and 221(1) of the Constitution.”

After hearing arguments of counsel on the preliminary objection the learned Justices of Appeal, in a unanimous decision, overruled the objection. The defendants (hereinafter called the appellants) have appealed to this Court against the ruling on two grounds of appeal. Counsel on both sides filed their clients’ briefs of argument. The issues for determination in the appeal were admirably summarized by the learned Senior Advocates for the appellants, Messrs Egonu, S.A.N., and Anyamene S.A.N. thus:

“(a) Are the two grounds of appeal filed by the respondents in the appeal No.CA/E/409/86 grounds of law alone.

(b) Is the appeal No. CA/E/409/86 competent”

Oral arguments of counsel on both sides centred on these two issues. The plaintiffs shall hereinafter be referred to as the respondents. Expressly the arm of the preliminary objection which contended that an order for consolidation is not an appealable order was abandoned by Mr. Egonu, the learned Senior Advocate for the appellants orally. It ought, however, to have been abandoned by a notice in the appellant’s brief (Order 6 rule 5(1) of the Supreme Court Rules, 1985).

Mr. Egonu submitted that none of the two grounds of appeal before the Court of Appeal was a ground of law. He pointed out that the order appealed against was an interlocutory decision in that the Judge himself could subsequently review it. So, it could only be appealed against as of right under Section 220(1)(a) of the Constitution of 1979 if the grounds were those of law alone. He further submitted that as they were not grounds of law alone, appeal could lie only on those grounds with leave of the High Court or of the Court of Appeal. But, he continued, as no leave was obtained the appeal was incompetent. He cited the following cases in support of his submissions: Harrison Welli & Anor. v. Charles Okechukwu & Ors. (1985) 2 N.W.L.R. (Part 5) 63, at pp.67, 70-73; S.C. Ojemen & Ors. v. H.H. William O. Momodu II & Ors. (1983) 3 S.C. 173, at p. 207 et. seq.; J. B. Ogbechie & Ors. v. Gabriel Onochie & Ors. (1986) 3 S.C.54, at p.56 et. seq.; Blay v. Solomon (1947) 12 W.A.C.A. 175. On his submission that an order of consolidation is an interlocutory decision, he cited the case of Obiekweife & Ors. v. Umunna & Anor. (1951) 2 F.S.C. 70. He pointed out that ground 2 complains only of “wrong principles” not “wrong principles of law”. If it were the latter, it would have been necessary to give particulars under Order 3 rule 2(2) of the Court of Appeal Rules, 1981.

In support of his submission that ground 2 which complains about the manner in which the learned trial Judge exercised his discretion, he submitted that whether he exercised it rightly or wrongly is a question of fact. He cited in support: Odusote v. Odusote (1971) 1 All N.L.R. 219 at p.222 & 224. He urged the court to allow the appeal.

In reply, Mr. Okafor learned counsel for the respondents who also adopted his brief and relied on it submitted that the ruling in question was final as it concluded the rights of the parties as to whether or not the two suits would be tried together. It did not matter, he submitted, that the order could be reviewed afterwards. He relied on the decision in Akinsanya v. U.B.A. Limited (1986) 4 N.W.L.R. (Pt.35) 273. He also submitted that the two grounds of appeal are grounds of law alone and so no leave was required.

Ground 1 merely paraphrased the factual situation, their complaint being that taking those facts into account, the Judge was wrong to have consolidated the suits. He cited: Ogbeche v. Onochie (supra). On ground 2 he submitted that “wrong principles” can only be wrong principles of law. He cited: Watson v. Rodwell (1876) 3 Ch. 380, p.383. He, however, conceded it that if it was a ground of law particulars would be required. But, he submitted that even so, it is still a ground of law. He urged the court to dismiss the appeal.

In his final reply, Mr. Egonu referred to. 78 lines 21- 38 and submitted that the Court of Appeal effectively found that it was an interlocutory decision.

There is no dispute as to the fact that the appellants did not obtain leave before they filed their appeal in the Court of Appeal. The main questions are therefore whether the decision appealed against was a final or an interlocutory decision; and if interlocutory, what is the result

Now in Nafiu Rabiu v. Kano State (1980) 8)11 S.C. 130, Idigbe, J.S.C., with whom five other eminent Justices agreed, said at pages 203 – 204:

“….. a close examination of the provisions of the 1960 and 1963 Constitutions will show that for the first time in the legal history of this country—–a right of appeal as of right and not by leave of court has by sub-section (1) (b) of Section 220 aforesaid, been given to parties or litigants on questions of law alone but, as it appears to me only in (1) non-final (i.e. interlocutory) decisions and (2) decisions given by the High Court – whether in civil or criminal proceedings – when not sitting at first instance (i.e. in a case of double appeals which really are appeals coming from the High Court from lower courts).”

Although this opinion was given in a criminal appeal, it has been followed and applied by the Court of Appeal in many civil appeals against interlocutory decisions. See for an example Akinsola Dawodu & Anor. v. F. O. Ologundundu & Ors. (1986) 4 N.W.L.R. 104, at p.112. For, it has been held by the House of Lords in England that although what is ordinarily binding in a case is the ratio decidendi and not the obiter dictum; yet an obiter dictum by the ultimate court on an important point of law is one which is binding on and followed by all the lower courts: see W.B. Anderson & Sons Ltd. & Ors. v. Rhodes (Liverpool) Ltd. & Ors. (1967) 2 All E.R. 850. After all, a good deal of the important pronouncements of the Supreme Court in the famous case of Bronik Motors Ltd. & Anor. v. Wema Bank Ltd. (1983) 1 S.C. N.L.R. 296 was obiter. Yet it was binding on the Court of Appeal and all other courts lower down in the judicial hierarchy until the law was changed in Akinsanya v. U.B.A. Ltd. (1986) 4 N.W.L.R. 273.

Was the decision appealed from therefore final or interlocutory It was a decision to consolidate two cases pending before the High Court. In Order 2 rule 7 of the High Court Rules of Eastern Nigeria applicable in Anambra State it is provided as follows:

“Causes or matters pending in the same court may, by order of court be consolidated, and the court shall give such directions as may be necessary with respect to the hearing of the causes or matter so consolidated.”

It is settled that the object of consolidation is to save costs and time but that it will not be ordered unless there is some common question of law or fact bearing sufficient importance in proportion to the rest of the subject matter of the action to render it desirable that the whole should be disposed of at the same time: see Diab Nasr v. Complete Home Enterprises (Nig.) Ltd. (1979) 5 S.C.1, at p. 11. It was also conceded by counsel and indeed noted by the Court of Appeal that an order of consolidation may in the discretion of the court be varied or rescinded by the trial judge or another judge before whom the consolidated cases may be brought for hearing, if the cause of justice, in his opinion, so dictates: Edward Allah & Ors. v. Obi Chukwurah Nnacho & Ors. (1965) N.M.L.R. 28. On this issue the Court of Appeal in the lead judgment of Aseme, J.C.A., to which Olatawura and Katsina-Ala, JJ.C.A., concurred held:

“Is the ruling interlocutory or final Akinsanya’s case decided that the correct test is that advanced in Bozson v. Altricham U.D.C. (1903) 1 K.B. 547, and adopted in Blay v. Solomon 12 W.A.C.A. 175 and Ude v. Agu (1961) 1 All Nigeria Law Reports 65. Considering the ratio decided in these cases, I am of the view that the ruling on a motion for consolidation is interlocutory for reason that in relation to the court the ruling did not finally determine the very act of consolidation as in practice the very court or Judge that consolidated the actions could also deconsolidate the same.”

If the learned Justice of Appeal stopped there and there was no appeal against that conclusion that would have been the end of the matter. But then almost immediately afterwards the learned Justice of Appeal said:

“If the ruling is final, and I do so hold there remains the question whether leave is necessary in this case.”

Thus, in one breath he stated that on the authority of decided cases, it was an interlocutory decision; in another he held it was a final decision. I do not see how it could be the two at the same time. However, I believe that, but for what looked like a brief inter regnum under the decision in W.A. Omonuwa v. Napoleon Oshodin & Anor. (1985) 2 N.W.L.R. 924, at p. 938 – but which has now been explained away in the decision in A.M.O. Akinsanya v. United Bank for Africa Limited (1986) 4 N.W.L.R. 273, at pp. 289 – 291, the test as to whether a decision is final or interlocutory which has been preferred by authoritative decisions in this country has been consistently one which looks at the result, id est, which asks the question: “does the judgment or order, as made, finally dispose of the rights of the parties” See on this: Blay & Ors. v. Solomon (1947) 12 W.A.C.A. 117; William Ude & Ors. v. Josiah Agu & Ors. (1961) 1 All N.L.R. 65; A.M.O. Akinsanya v. U B.A. Ltd. (supra).

Applying this test to the order of consolidation in this case, I have no doubt that the learned Judge has not disposed of any rights of the parties before him, much less finally. All he did was to make an arrangement for the convenience of the court and the parties of disposing of the two cases before him together, instead of one after another. It was an arrangement which he could resile from or reverse if at any time it appeared to him that the interests of justice so dictated. There is yet another reason why the order of consolidation could not have been final. One indisputable attribute of all final orders is that once made the judge making it becomes functus officio, so that it can only be reversed on appeal. So, if a court as in this case, before or during the course of the hearing of a case, orders something which he can review or reverse at any time, such an order cannot be final. The learned Justice of Appeal was in error to have stated at the later stage of his ruling that the order of consolidation was final. It follows that a consideration of the respondents’ right of appeal as of right under paragraph (a) of subsection (1) of Section 220 of the Constitution did not arise.

The next question is whether the two grounds are of law alone or are either facts or mixed law and fact. As I said above, they could have had that right only if their grounds of appeal or at least one of them was a ground of law alone. The two grounds stated as follows:-

“Grounds of Appeal:

(1) The learned trial Judge erred in law in consolidating Suit No.AA/1/76, in which the appellants are the plaintiffs, with Suit No. AA/19/77, in which the respondents are the plaintiffs, for the purpose of trial, in the face of the strong opposition of the appellants, and ought to have allowed each suit to be tried separately.

Particulars of Error:

(1) Since consolidation of cases is not a legal requirement but a rule of practice which is made for the convenience of the parties in the case, the learned trial Judge ought not to have consolidated the two suits after –

(a) the plaintiffs had shown that they were not consenting to the order, and that consolidation would prejudice their case (Suit No. AA/1/76) which was instituted more than one year before the respondents brought theirs (AA/19/77),

(b) the plaintiffs had shown that the parcel of land they were claiming was not the same as the parcel of land the respondents were claiming,

(c) the plaintiffs had shown that in their view the issues in the two suits were not the same at all and consolidation would only lead to confusion,

(d) the plaintiffs had shown that there are no common questions of law or fact that could decide the two cases at the same time since the cases relate to separate areas of land,

(e) the plaintiffs had shown that consolidation would complicate the trial of the two suits.

(2) In granting the order to consolidate the two suits AA/1/76 and AA/19/77, aforesaid in the circumstances of the case the learned trial Judge exercised his discretion on wrong principles.”

Now, I cannot conclude that either ground is a ground of law merely because the appellants did or did not call it so in the ground of appeal: Ojemen v. Momodu II & Ors. (supra).

I must have to thoroughly examine each ground to see whether it is a ground of law or of fact. It appears to me that ground 1, taken together, as I should, with its particulars involves a determination of a number of issues and in fact some of them contrary to the findings of the learned Judge. Such issues include the fact that the consolidation would prejudice the respondent’s case, that the parcels of land the respondents were claiming were not the same with those the appellants were claiming – quite contrary to the findings of the learned trial Judge that the same plans were being relied upon by both parties in each of the two cases. So also is their contention in particulars 1(c) and (d) that in their view the issues in the two cases were not the same. This is contrary to the finding of the learned Judge that common questions of law and of fact were raised. So taking ground 1 as a whole there are a number of important issues of fact that must have to be examined and decided. It is the law that such a ground is one of fact or at least of mixed law and fact. See on this Ogbeche v. Onochie (supra) at page 491 – 492. See also the recent decision of this court in Paul Nwadike & Ors. v. Cletus Ibekwe & Ors. (1987) 4 N.W.L.R. 718, at p.744. The inevitable conclusion I have reached is that ground 1 is one of fact or at least of mixed law and fact.

Ground 2 complains that the learned trial Judge exercised his discretion on wrong principles. I do not agree with the learned counsel for the respondents that exercise of a court’s discretion is a matter of law. I rather agree with the learned counsel for the appellants that as the principles and manner in which a judge ought to exercise his discretion in a particular case is a question of fact, depending on the facts and circumstances of each case, whether or not he exercised it rightly in any particular case is at least a question of mixed law and fact. Although the further submission of Mr. Egonu that the ground in any event lacks necessary particulars of the nature thereof if they were errors or misdirections in law as required by Order 3 Rule 2(2) of the Court of Appeal Rules, 1981, is unanswerable, I do not think it is germane to the point under consideration. Be that as it may, I am satisfied that none of the two grounds of appeal before the Court of Appeal was a ground of law alone.

It follows from all I have been saying that the appellants before the Court of Appeal (respondents here) purported to appeal as of right whereas they had no such right. They could only have appealed by leave of either the High Court or of the Court of Appeal. As no leave was sought or given the appeal was incompetent.

The appeal, therefore, succeeds and is allowed. I hereby set aside the ruling of the Court of Appeal dated the 21st day of April, .1987,whereby it held that the appeal was properly before it and direct that the appeal be struck out.

I assess costs against the respondents at N500.00 in this appeal and N500.00 in the court below.A. NNAMANI, J.S.C.: I had a preview of the judgment just delivered by my learned brother, NNAEMEKA-AGU, J.S.C. and I entirely agree with his reasoning and conclusions.

The issue of whether an order of consolidation was appealable having been abandoned by the learned Senior Advocate for the appellants in the course of argument, the only issues for determination was really whether the learned trial judge’s decision to consolidate the two suits was an interlocutory or a final one. The second issue was whether the two grounds of appeal which had been filed in the Court of Appeal were grounds of law or of mixed law and fact. In his brief of argument, the learned Senior Advocate set down the issues thus:-

“(a) Are the two grounds of appeal filed by the respondents in the appeal No.CA/E/409/86 grounds of law alone

(b) Is the appeal No. CA/E/409/86 competent”

The question whether the order of consolidation was an interlocutory or final decision is only relevant, for if it was interlocutory, leave to appeal would have to be obtained from either the Court of Appeal or the High Court. See Sections 220(1)(a) and 221(1) of the Constitution of the Federal Republic of Nigeria, 1979. The test which must be applied in determining whether a decision is interlocutory or final was settled by this court in Akinsanya v. U.B.A. Ltd (1986) 4 N.W.L.R. Pt. 35 273. There this court, adopting the test set down in Bozson v. Atrincham (1903) 1 Q.B.574; held the test to be,

“Does the judgment or order as made, finally dispose of the rights of the parties If it does, then the order is a final order. If it does not, it is interlocutory”

In this case the order of consolidation was made by the learned trial Judge under Order 2, Rule 7 of the High Court Civil Procedure Rules of Eastern Nigeria now applicable in Anambra State. Mr. Okafor for the Respondent

has submitted that if the motion praying for that order was a proceeding, then the ruling on it which determines the issues in controversy between the contending parties is a final decision. In my view, though the order for the moment settled the issue whether there will be or will not be a consolidation, I would not regard a consolidation order as one which settles the issues between the parties. The terms of Order 2, Rule 7 under which the order of consolidation was made clearly gives the discretion to the Judge. As he is to give directions as to the hearing of the matters so consolidated, it is settled that in his discretion he can also deconsolidate. It is my view too that this was an interlocutory decision in respect of which leave to appeal ought to have been obtained.

As regards the grounds of appeal to the Court of Appeal, whether they are grounds of law becomes important having regard to the provisions of Section 220(1)(b) of the 1979 Constitution. I have perused the grounds of appeal on pages 6 and 7 of the Records of Proceedings. Ground 1is clearly one of mixed law and fact particularly when one has a close look at the particulars of error.

On ground 2, I am inclined to agree with Mr. Okafor that principles mentioned therein could only have been principles of law. The complaint would then be that the learned trial judge exercised his discretion on wrong principles of law. To examine the manner in which the learned trial judge exercised his discretion, one has necessarily to look at the facts and the circumstances.

It is against that background that one determines whether the right principles of law have been applied. I am of the view that this ground of appeal was a ground of mixed law and fact. In the result, I too hold the view that leave ought to have been obtained pursuant to Section 221(1) of the Constitution. Such leave having not been obtained, the appeal to the Court of Appeal was incompetent.

For these reasons, and the more detailed reasons in the lead judgment, I too allow this appeal. I abide by the order of costs made by my learned brother, Nnaemeka-Agu, J.S.C.M. L. UWAIS, J.S.C.: I have had a preview of the judgment read by my learned brother Nnaemeka-Agu, J.S.C. I agree with the reasons and conclusion therein. Accordingly, the appeal has merit and I too will allow it with costs assessed against respondents at N500.00 in this court and N50.00 in the court below.S. M. A.

BELGORE, J.S.C.: The Court of Appeal overlooked the clear provisions of S.221(1) of the Constitution. Clearly the grounds of appeal are those that can only be filed with leave. The decision of the High Court was not only interlocutory but the grounds of appeal at best can be said to be of mixed law and fact. Odusote v. Odusote (1971) 1 All N.L.R. 219, 222.

The whole grounds are deficient for failure either to seek leave or to give particulars as required by Order 3 Rule 2(2) of the Court of Appeal Rules. Welli & Anor. v. Okechukwu & Ors. (1985) 2 N.W.L.R. (Pt. 5) 63, 67; Ogbechie & Ors. v. Onochie & Ors., (1986) 3 S.C. 56. The nature of an order for consolidation of cases by a court manifests not a final but interlocutory order. (See Order 2 Rule 7, High Court Rules, Cap.61, Laws of Eastern Nigeria 1963 applicable to Anambra State). The judge, by ordering consolidation, does not give finality to any of the cases; rather he brings them under the umbrella of a single trial to decide all matters between parties or their privies in respect of the same subject matter.

The essence of consolidation is to save time and costs by avoiding a multiplicity of litigations where one will suffice. If for any reason in course of trial, the court that ordered consolidation deems it expedient to deconsolidate, whether because those parties are not contesting the same issue or subject matter, or the parties are not the same and justice would demand separate trials, deconsolidation will be ordered. Consolidation does not make the judge ordering it functus officio, he continues with the hearing of the consolidated matter. The order for consolidation therefore being interlocutory can only be appealed against from the High Court to the Court of Appeal by leave. As no leave was obtained in this instance, the purported appeal is a nullity as it is not based on any lawful premise; for such an appeal cannot be filed as of right as provided by S.220(1) of the Constitution.

The lead judgment of the Court of Appeal, by Aseme, J.C.A. really confused issues and this led to misapprehension of the interlocutory nature of the order for consolidation. Leave is a pre-requisite for filing an appeal against interlocutory appeal to Court of Appeal from the High Court. Leave not having been sought, the appeal was therefore incompetent before the Court of Appeal. I allow this appeal with N500.00 cost in this Court and N50.00 in Court below in agreeing with Nnaemeka-Agu, J.S.C., whose judgment I read in draft.

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SC.97/1987