Isaac Okoye & Ors V. Umeokoli Ezemenike (for Himself and on Behalf of Umu Umeh Family of Okpo Village, Ekwulobia) & Ors (2002)

LawGlobal-Hub Lead Judgment Report

FABIYI, J.C.A. 

This is an appeal, against the interlocutory decision handed out by Hon. Justice C.J. Okoli, on 17-1-2000, consolidating the three suits filed by the parties, while sitting at the High Court of Justice, Ekwulobia, in Anambra State of Nigeria.

It is apt to state the circumstance or situation created by the parties, which led to the order of consolidation of the three suits which were initiated in quick succession. In suit No. AC/108/97, the plaintiff/applicant/respondent for himself and on behalf of Umu Ume family of Okpo village, sued the appellants and James Okeke, for a declaration of title, to a statutory right of occupancy, to a piece or parcel of land called ‘Ani Offia Udo Umu Ume’ situate, and being in Uhana, Okpo Village, Ekwulobia town, whose annual value is N1,000. As well, he claims N250,000 as general damages for trespass and perpetual injunction. It is instructive to further note that, pleadings were duly exchanged in this suit.

The 1st – 3rd defendants/appellants filed their own cross-action as in suit No. AG/79/98, against the plaintiff in suit No. AC/108/97. In paragraph 3 of their own statement of claim at page 26 of the record of appeal, they say that the land in dispute is known as ‘Offia Udo Owerre Okpo’ and that they are in possession of same. They claimed N250,000 as general damages for trespass on their land as well as an order of injunction, restraining the defendants, servants or agents from further trespass on the said land. Pleadings were also duly filed and exchanged in this suit.

The 3rd action suit No. AG/92/98 was initiated by James Okeke, who was the 4th defendant in suit No. AG/108/97 and one Rowland Okeke. This action is against the Ist-3rd defendants in Suit No. AG/108/97 as 1st set of defendants and the plaintiff in suit No. AG/108/97 as ‘2nd set of defendant’. The plaintiffs in this 3rd suit No. AG/92/98 claim declaration that they are entitled to the statutory right of occupancy over the piece of land known as and called ‘Offia Udo Owerre’ Okpo Ekwulobia, whose annual rent is N100, N200,000 being general damages for trespass as well as perpetual injunction restraining the defendants from further acts of trespass on the said land. Again, pleadings were exchanged by the parties.

By the motion No. AG/89m/99 dated 10-5-99, the plaintiff in suit No. AG/108/97 prayed for an order of consolidation of his own suit with suit Nos. AG/79/98 and AG/92/98. The motion was supported by an affidavit of 10 paragraphs deposed to by Adrian Jude Ekechi, Esq. of counsel. Isaac Okoye, the 1st respondent in the motion, deposed to a counter-affidavit of 7 paragraphs.

On 17-1-2000, I, Ukoh, Esq., learned Counsel for the plaintiff/applicant moved the motion for consolidation. He maintained that the subject matter in the three suits happen to be the same and that the parties are the same. He submitted that any judgment in respect of any of the suits will affect the three parties to the suits.

Mr. Anwaegbu, learned Counsel for the 4th defendant/respondent did not oppose the application for consolidation of the three suits for hearing in one fell swoop.

Mr. I. Obiakor, learned counsel for the 1st, 2nd and 3rd defendants, maintained that parties to the suits are not the same. He agreed that 5th defendant in suit No. AG/108/97 is a member of Umuofoegbu family of Okpo Village. He maintained that the subject-matter in the three suits are not the same. He referred to Order 15 rule 2 of the High Court Rules, 1988. He later admitted that the subject-matter of the three suits are in respect of the same ‘Offia Udo Owerre Okpo’ land. He urged that the application should not be granted as consolidation will rather prolong the action.

The learned trial Judge proceeded to give a bench ruling on 17-1-2000. He found that the subject-matter in each of the three suits is the same ‘Offia Udo Owerre Okpo’ land and that there are common questions of law or facts to be decided in regard to the claims and cross-claims of the parties. The learned trial Judge then maintained that he exercised his discretion and ordered the consolidation of the three suits.

The appellants felt aggrieved with the stance taken by the learned trial Judge. A notice of appeal dated 26-1-2000 was filed on their behalf. Three grounds of appeal accompanied the said notice of appeal. They read as follows;

“(1) The learned trial Judge erred in law in consolidating suits Nos. AG/108/97, AG/79/98 and AC/92/98, when the plaintiff did not come to court by due process of law.

Particulars of Error

The Plaintiff made application for consolidation only in suit AG/108/97, and did not do so at the same time in AG/79/98 and AG/92/98, sought to be consolidated with suit AG/108/97 and thereby, failed to follow the light procedure.

(2) The learned trial Judge erred in law, in consolidating the three suits, when from the writs of summons in the three cases and the motion paper (a) the parties are not the same, (b) the parties are not suing or defending in the same right.

(3) The learned trial Judge erred in law, in consolidating the three suits, when it would be embarrassing to try them together, since 4th defendant in suit AC/108/97 is the plaintiff in AG/92/98 and Rowland Okeke is a total stranger to all the suits, but is made party in the motion paper without an order of Court amending the writs of summons.”

The appellants then prayed that the ruling of the court below be set aside and that the three suits be deconsolidated and tried separately.

On 6-3-02 when the appeal fell due for hearing, Mr. G.N.A. Okafor, learned Counsel for the appellants adopted the brief of argument filed on their behalf. Mr. I. Ukoh, learned Counsel for the respondents also adopted the brief of argument filed on behalf of his clients. He referred to Order 15 rule 1 of the High Court Rules of Anambra State, 1988.

On page 2 of the appellants’ brief of argument, two issues were formulated for determination of the appeal. They read as follows:

“(1) Whether the application of the applicant for consolidation was in accordance with due process of law.

(2) Whether the learned trial Judge, in consolidating the three suits, took into account all the elements required by law for making such an order?”

On page 3 of the respondents’ brief of argument, three issues were couched for a due determination of the appeal. They read as follows:

1. Whether the lower court was right in consolidating suit Nos. AG/108/97, AG/79/98 and AC/92/98 pursuant to the 1st respondent’s prayer pursuant to Order 15 rules 1 & 3 of the High Court Rules of Anambra State.
2. Whether the subject-matter in the three suits, are the same so as to bring them together and determine the ownership of the land once and for all.
3. Whether the parties to the three suits can be regarded as being one and the same persons (sic) so that determination of who is the owner in one will affect the decision in the others.”

Arguing issue No.1, the appellant’s counsel submitted that the respondents’ manner of coming to court was wrong. He felt that the motion taken for consolidation must be concurrent in the three suits.

The three suits and the parties therein must be before the court before an order consolidating the cases could be made. As there was only one motion, learned Counsel felt that the order made to consolidate the three cases was not proper. He placed reliance on the decision in Daws v. Daily Sketch (1960) 1 A.E.R. 397 at page 399.

Learned Counsel, on issue No.2, felt that the trial Judge only considered the question of whether the subject matter in the three suits was the same to make his order for consolidation. He maintained that the learned trial Judge failed to consider whether it would be convenient to try the cases together. He observed that the parties were not agreed on the areas, boundaries and features of their respective lands. He felt that on the pleadings, it is impossible for the court to have held merely by looking at the names that the lands in the three suits were the same. He referred to the case of Chief Mark Young Jack v. Deliver Igonikon Harry (1978) 6-7 SC 159 at pages 164-165.

Learned Counsel observed that the conditions of consolidating cases are stated by the Supreme Court in Enigwe v. Akaigwe (1992) 2 NWLR (Pt.225) 505 at pages 534-535. He felt that the application of the respondents, based on the cited authority, should not have been granted. He opined that the parties and issues in the three suits are not the same. Parties are not claiming or defending in the same rights and there are not the same common questions of law or fact raised in the three suits as to make it desirable to try them at the same time; so learned Counsel observed. He felt that consolidation will cause confusion and embarrassment at the hearing. He urged that the ruling of the court below be set aside and suits deconsolidated and tried separately.

Arguing the respondents’ three issues together, learned Counsel at the on-set, referred to Order 15 rules 1 and 3 of the Anambra State High Court Rules, 1988. He felt that the conditions dictated by the rules before suits can be consolidated are –

1. The causes sought to be consolidated must be pending in the same judicial division.
2. Consolidation is by the order of a Judge in the judicial division where the suits are pending.
3. Parties need not be the same but there must be common questions of law and fact – that is to say issues must involve the same subject-matter.
4. Application may be oral or by written motion but must be in the presence of all the parties concerned.

Learned Counsel submitted that the order for consolidation made by the learned trial Judge complied with the conditions dictated by the rules of his Court. All the three suits are pending before him. It was observed that parties in the three suits are the same. Learned Counsel referred to the case of Chief O. Atanda & Ors. v. T. Akunyun & Ors. (1988) 10-11 SCNJ 11.

Learned Counsel submitted that the only issue in the three cases is ownership of a piece of land called Offia Udo Owerre Okpo. He observed that whether it is a claim for declaration of title or trespass, any decision arrived at in any of the cases will affect the others. If the court finds in suit AC/108/97 that the plaintiff/respondent is the person entitled to statutory right of occupancy in respect of Offia Udo Owerre Okpo land, situate at Uhana Village, Okpo Ekwulobia, the claim in suit AG/79/98 for trespass against him will fail as one cannot be a trespasser on his own property. In the same fashion suit No. AC/92/98 will fall to the ground. Learned Counsel observed that appellants’ counsel – I. Obiako, Esq., at page 58 of the record of appeal conceded that the subject-matter of the three suits is in respect of the same Offia Udo Owerre Okpo land.

Learned Counsel observed that the provisions of the rules dealing with consolidation of actions are clear and unambiguous and should be interpreted as they are. He referred to the cases of Attorney-General Bendel State v. Attorney-General Federation (1982) 3 NCLR 1 at page 17; Awolowo v. Shagari (1979) 6-9 SC 51. Learned Counsel contended that the decision in Enigwe v.Akaigwe (supra) supports the order of consolidation made by the learned trial Judge. He observed that the three cases are all pending in the same court and before the same Judge. Evidence to be adduced by pat1ies in the three suits concern the same subject-matter. As such, it will amount to unnecessary waste of time to try the suits separately; learned Counsel contended. He strongly felt that the decision in Enigwe v. Akaigwe (supra) does not avail the appellants.

It is to be noted at this point that, the fulcrum of this appeal is the interpretation to be given to Order 15 rules 1 and 3 of the Anambra State High Court Rules, 1988. The same constitutes the relevant and applicable rules of court in this matter. It provides as follows:

“1. Causes and matters pending in the same judicial division may, by order of a Judge of the said division, be consolidated for the purpose of trial, whether or not in such causes or matters, the plaintiffs are the same and the defendants are the same or the plaintiffs or the defendants are all different, provided there is some common questions of law or fact, bearing sufficient importance in proportion to the rest of the subject matter of the actions to render it desirable that all of them should be disposed of at the same time.

3. A party may, in open court and in the presence of all other parties concerned, apply orally to the Judge for the consolidation of causes or matters; otherwise an application for consolidation shall be made by written motion on notice to all parties to the causes or matters affected.”

From the applicable rules of court as reproduced above, the parameter for a proper consolidation of suits for hearing in one fell swoop can be deciphered as follows –

1. The causes or matters sought to be consolidated must be pending in the same judicial division.
2. Consolidation order is by a Judge in the judicial division where the causes or matters are pending.
3. Parties need not be the same.
4. There must be common question of law and fact bearing sufficient importance in proportion to the rest of the subject matter.
5. Application may be oral or by written motion but must be in the presence of all the parties concerned.

When arguing the 1st issue on behalf of the appellants, learned Counsel attempted to fly a kite, when he said that motion taken for consolidation must be concurrent in the three suits. He also asserted that the three suits and the parties must be before the court before an order consolidating the cases could be made. Learned Counsel tried to read into Order 15 rule 3 of the Rules of Court, what is not contained therein. Rule 3 of Order 15 provides for oral application in open court in the presence of all the parties concerned or an application by motion on notice to all the parties affected.

In strict compliance with rule 3 of Order 15, the plaintiff/respondent herein filed a motion on notice as can be seen on pages 5354 of the record of appeal. On 17-1-2000, when the motion was heard, parties were duly present and/or represented by counsel. Since there was strict compliance with the applicable rules, I see no cause for any alarm. With due respect, argument touching the respondents’ manner of coming to court or not following proper procedure appears tenuous. The decision in Dawis v. Daily Sketch (supra) is not of moment. In short, issue No.1 is resolved against the appellants.

The case of Enigwe v. Akaigwe (supra), referred to by learned Counsel on both sides, provides the required direction to be followed whenever issue relating to consolidation of actions falls for determination.

Consolidation of actions is the process whereby, two or more separate actions pending in the same court are tried together at the same time, in same proceeding, to save costs, time and much needed energy. See Daniel Sawnta & Anor. v. Kagoro Ngah (1998) 13 NWLR (Pt. 580) 39 at page 48. The sole aim of consolidation of actions is to prevent multiplicity of actions with attendant costs, where one action would serve to determine the rights of a number of persons with same interest in one cause or matter. Refer to Lediju v. Odulaja (1943) 17 NLR 15. By the applicable rule, it is discretionary for the court to grant an application for consolidation within the parameter of established practice. Refer to Nasr v. Complete Home Enterprises (1977) 5 SC 1 at 11.

In consolidated actions, each suit still retains its separate identity and each suit must be considered on its merits. See Attah v. Nnacho (1965) NMLR 28; Kutse v. BakFur (1994) 4 NWLR (Pt.337) 196. Each suit must be individually proved. As well, judgment must be given in respect of each suit. Evidence in proof of one need not necessarily constitute evidence in proof of the other or others. Refer to Dugbo & Ors. v. Kporoaro & Ors. (1958) WNLR 73.

The Supreme Court laid it down in clear terms that, consolidation of actions ought not to be ordered unless there is some common questions of law or fact bearing sufficient importance to the rest of the subject-matter of the action to render it desirable that the whole actions should be disposed of at the same time. Refer to Ifediora v. Umeh (1988) 2 NWLR (Pt.74) 5 at 13.

In the instant appeal, it is not in contention that all the three suits are pending before the learned trial Judge. Parties in all the suits are substantially the same. In any event, this is not a prerequisite. By the applicable rule of court as reproduced earlier on, parties need not be the same. There is no doubt about it that the only issue in the three suits deals with ownership of a piece of land called ‘Offia Udo Owerre, Okpo’. I agree with the submission of learned Counsel for the Respondent that in claims for declaration of title or trespass, any decision arrived at in any of the suits will affect the other. If the court finds in suit AG/108/97 that the plaintiff/respondent is the person entitled to statutory right of occupancy in respect of ‘Offia Udo OWerre Okpo’ land situate at Uhana Okpo Ekwulobia, the claim in suit AG/79/98 for trespass against him, will fail as one cannot trespass on his own property. In the same fashion, Suit No. AG/92/98 is similarly inter-twined. Interestingly, I. Obiako, Esq, learned Counsel for the appellants at page 58 of the record of appeal conceded that the subject matter of the three suits is in respect of the same ‘Offia Udo Owerre Okpo’ land. In all the three suits common question of law and fact arise. In the prevailing circumstance, one is at a loss as to the stance posed by the appellants against consolidation of the three suits for trial in one fell swoop to save costs and time.

In the instant appeal, the learned trial Judge, in my considered view, acted in the right direction in ordering consolidation of the three suits, since they all have the same characteristics of law and fact arising from the same piece of land known by all as ‘Offia Udo Owerre Okpo’ land. The suits are closely inter-related. I feel that the learned trial Judge exercised his discretion judicially and judiciously in ordering consolidation of the three suits so as to avoid multiplicity of actions. I am unable to fault him.

It is inconceivable that the appellants oppose consolidation of the three suits for a simultaneous hearing. They have not been able to tilt me to find in their favour. Appellants’ issue No.2 is also resolved against them. The appeal is devoid of merit. It is accordingly, hereby dismissed as the learned trial Judge’s order for consolidation of the three suits stands inviolate. The appellants should pay N4,000 costs to the respondents.

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Other Citations: 2002)LCN/1174(CA)