3PLR – ADANA V. ONOJA

POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS

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ADANA

V.

ONOJA

COURT OF APPEAL

[ABUJA DIVISION]

3PLR/2003/6  (CA)

OTHER CITATIONS

51 WRN 92

 

BEFORE THEIR LORDSHIPS:

GEORGE ADESOLA OGUNTADE, JCA (Presided and delivered the leading judgment)

IBRAHIM TANKO MUHAMMAD, JCA

ALBERT GBADEBO ODUYEMI, JCA

 

BETWEEN

MOHAMMED ADAMA

 

AND

1.AMONYE ONOJA

2.ALHAJI OKPANACHI AME OGBA

 

REPRESENTATION

Mr. I. Ekpa – For appellant

Mr. S.A. Agada – For respondent

 

MAIN ISSUES

PRACTICE AND PROCEDURE – APPEAL ; Filing an appeal from the decision of the High Court given in its appellate jurisdiction- whether leave is required when grounds of appeal are of law and fact.

PRACTICE AND PROCEDURE – COURT ; Appeal ; order 3 rule 2 (2) of the Court of Appeal Rules 1981 (as amended) provision of.

PRACTICE AND PROCEDURE – COURT ; Consolidation of two or more suits ; whether the grant of the order of consolidation is technical in nature ; whether the approach of the court is flexible or inflexible.

PRACTICE AND PROCEDURE – COURT ; Consolidation of suits ; correct approach to be adopted by court in considering an order for consolidation ; effect of improper exercise of the order.

PRACTICE AND PROCEDURE – Consolidation of suits ; factors to be considered in ordering same.

PRACTICE AND PROCEDURE – Consolidation of two or more suits ; whether the grant of the order of consolidation is technical in nature ; whether the approach of the court is flexible or inflexible.

PRACTICE AND PROCEDURE – Consolidation of suits ; correct approach to be adopted by court in considering an order for consolidation ; effect of improper exercise of the order.

 

MAIN JUDGEMENT

GEORGE ADESOLA OGUNTADE, JCA (Delivered the following judgment):

The appellant was the plaintiff in suit No. 006/96 before the Okpo Upper Area Court of Kogi State. He sued the 1st respondent over the ownership of a parcel of land called Oko-Amaja in Kogi State. Whilst the suit was pending before the aforesaid Okpo Upper Area Court, the 2nd defendant initiated a suit of his own No. CV 033/97 against the plaintiff (i.e. present appellant) in suit No. 006/96.

 

On 21/8/96, following an application by plaintiff’s counsel in suit No. 006/96, which said application was vehemently opposed by counsel for the defendant in suit No. 006/96 who happened to be counsel for the plaintiff in suit No. CV/033/96, the Okpo Upper Area Court consolidated the two suits for hearing. After the consolidation, evidence was taken from witnesses. However, the consolidated suit was latter transferred to the Upper Area Court, Idah for hearing de novo. On 29/7/98, before the Idah Court, Mr. Igoche counsel for the defendant in 006/96 made an application that the suits be de-consolidated. The application was opposed by Mr. Ekpa for the plaintiff in 006/96. The Upper Area Court Idah in its ruling held that the suits transferred to it were consolidated and that it had no power to de-consolidate them. It therefore refused the application.

 

The court proceeded to a full hearing of the case and on 18/12/98 delivered judgment. In the said judgment, the court made the following orders:

 

1. The land or all the portions of land in dispute are declared for the plaintiff as the original owner.

 

2. Forfeiture and ejectment sought in the plaintiff against the defendants is refused and dismissed.

 

3. The defendants are to remain on the land where they live, enjoy the economic trees they have planted and the 1st defendant in particular is to continue to farm on the portion he was farming before.

 

4. The 2nd defendant is building on the spot which belongs to the plaintiff. If he wants to continue with the building he has to seek the permission of the plaintiff or demolish it.

 

5. The Okro trees and palm trees which grew naturally on the land are to be enjoyed by the plaintiff since they form part of the land.;

The defendants in the consolidated suit which was renumbered at the Upper Area Court Idah as CV/29/98 were dissatisfied with the judgment of the Upper Area Court, Idah. They brought an appeal against it before the High Court of Kogi State sitting at Idah (here-in-after referred to as the court below). In the notice of appeal the appellants raised 3 grounds of appeal. They were granted leave later in the proceedings to file nine additional grounds of appeal. The judgment of the lower court would appear to have been based upon a consideration of only the 1st and 2nd grounds of the additional nine grounds of appeal. Those grounds read:

 

1. The trial court erred in law when it ordered the consolidation of this case inspite of the objection to it when consolidation led to miscarriage of justice.

 

Particulars

 

97. Plaintiff sued only 1st defendant in suit No. CV/006/97 while AND 2nd defendant; sued the plaintiff on suit No. CV 33/97.

 

1. There was evidence that 1st defendant is occupying separate and distinct portion of land from 2nd defendant;.

 

1. The court treated the cases as if they were one.

 

2. The trial court erred in law when it failed to appreciate the legal implication of consolidation and treated the cases as if it was not one and delivered a single judgment and thus lead to serious miscarriage of justice.

 

Particulars

 

1. Each of the cases was filed separately, distinctly and individually by different parties.

 

1. The court treated the case as one.;

 

Now in its judgment, the lower court concluded as follows:

 

To our mind, the whole thing is a coerced union of unholy wedlock which is bound to break down irretrievably. We are confident that this is a clear case where the court in exercising his (sic) discretion was in disregard of legal principles, and also under a misapprehension of the facts so much so that justice has not been glaringly dispensed with and we hold as such. It is for these reasons that we hereby set aside the judgment and order a retrial. The trial should be in Okpo Upper Area Court.;

 

The respondent before the lower court who was plaintiff in Okpo Upper Area Court (here-in-after referred to as plaintiff;) was dissatisfied with the judgment of the court below and has brought this appeal before this court on eight grounds of appeal. Because the defendants (i.e. appellants in the court below) took objection to the competence of the grounds of appeal). I set the grounds out seriatim so that they can be easily referred to later in the consideration of their competence or otherwise.

 

Ground one

 

The lower court erred in law in setting aside the judgment of the trial court on the grounds that the consolidation made in the case is a coerced union of unholy wedlock which is bound to break down irretrievably thereby occasioning a miscarriage of justice.

 

Particulars of error

 

1. The consolidation made by the trial court is proper in the circumstances.

 

2. There is no evidence of coercion in this case.

 

3. The parameters for consolidation was aptly considered by the trial court.

 

Ground two

 

The lower court erred in law in holding that the trial court in exercising his discretion was in disregard of legal principle, and also under a misapprehension of the facts so much so that justice has not been glaringly dispensed with thereby occasioning a miscarriage of justice.

 

Particulars of error

 

1. The trial court considered the legal principle guiding consolidation.

 

2. There is no misapprehension of the facts by the trial court.

 

Ground three

 

The lower court erred in law in holding that the trial court confirmed its suo motu discretion to consolidate which had already taken place on page one before the objection was raised and thus occasioned a miscarriage of justice.

 

Particulars of error

 

1. The trial court did not consolidate the matter suo motu at page one.

 

2. The application considered by the trial court was an attempt to set aside the order of consolidation made before the case was transferred to the trial court

 

Ground four

 

The lower court erred in law in holding that the trial court was pre-empting or rather prophesying the outcome of the evidence which has not been put before it and yet basing the discretion to consolidate on these presumptions, and that consolidation is not to be made on a mere presumption or probability as in this case thereby occasioning a miscarriage of justice.

 

Particulars of error

 

1. The trial court based his reason on the application made before it and never dwelt on presumption or probability.

 

Ground five

 

The lower court erred in law in holding that it is only when those common question of law and fact have infact actually arisen that the stage is matured for an application to consolidate thereby occasioning a miscarriage of justice.

 

Particulars of error

 

1. The application and the ruling on consolidation made by the trial court was not premature.

 

2. It is not correct that it is after evidence that application for consolidation could be made.

 

Ground six

 

The lower court erred in law in holding that after the exercise of the discretion to consolidate, the trial court now find itself with just two stories instead of four stories thereby occasioning a miscarriage of justice.

 

Particulars of error

 

1. There were 3 stories from each of the party in this case which were all considered by the trial court.

 

Ground seven

 

The lower court erred in law in holding that these findings shows the 1st and 2nd appellants having a common ancestor and which is not the case by the evidence thereby occasioning a miscarriage of justice.

 

Particulars of error

 

1. The 1st defendant testify that he has common ancestor Adigba with the 2nd defendant.

 

2. The 2nd defendant testify that his great grandfather is Adigba, and that Adigba was the father of Aba who begot Onoja Ohiya.

 

Ground eight

 

The judgment of the lower court is unreasonable, unwarranted and cannot be supported having regard to the weight of evidence.;

 

In the appellant’s brief filed, the issues for determination in the appeal were identified as the following:

 

1. Whether the consolidation made in this case by the trial court was proper or in disregard of legal principle and under misapprehension of facts. (Grounds 1 and 2).

 

2. Whether the trial court considered the matter suo motu before the objection was raised. (Ground 3).

 

3. Whether the trial court based its order of consolidation on presumptions or probabilities. (Ground 4).

 

4. Whether it is after evidence is adduced that application for consolidation will be matured (sic) (Ground 5).

 

5. Whether the trial court find itself with just two stories instead of four after the consolidation. (Ground 6).

 

6. Whether there is evidence supporting the finding of the trial court that the 1st and 2nd defendants have common ancestors. (Ground 7).;

 

The respondents filed a notice of preliminary objection to the appeal on 18/6/01. The ground of the objection reads:

 

No leave of either the lower court nor this honourable court was sought for or granted before the appellant filed his appeal.;

The respondents filed their brief on 18/5/01. They did not anywhere in the said brief attempt to develop the preliminary objection raised. The appellant however filed arguments on the objection on 5/12/91. It was contended in the process that the respondents filed their brief on 18/5/01 and did not say anything about the preliminary objection therein. It was further contended that the respondents had therefore not raised the objection timeously. Appellant counsel relied on Anabaronye v. Nwakaihe (1997) 1 SCNJ 161;(1997) 1 NWLR (Pt. 482) 374 and Baba Abu v. Gov., Benue State (1981-82) B.S C.R. 57 at 62.

 

Alternatively, the appellant argued that as the grounds of appeal were of law alone, he did not require leave. Reliance was placed on section 241(1)(b) of the 1999 Constitution and Iloabuchi v. Ebigbo (2000) 4 SCNJ 46 at 48;(2000) 8 NWLR (Pt. 668)197 and Akibu v. Oduntan (2000) 13 NWLR (Pt. 685) 446; (2000) 7 SCNJ 189 at 205. I shall attend to the preliminary objection as to the competence of the appeal later in this judgment.

 

In the respondents brief filed, it was contended that the appellants grounds of appeal Nos. 1 to 7 are incompetent in that they did not conform with order 3 rule 2(2) of the Court of Appeal Rules. The objections in the words used in the brief read:

 

Ground one

 

Particular one is unrelated to the ground. The complaint related to the lower court finding that the consolidation was coerced. Particular two is an argument and both are not related to the record of proceedings. The record shows that at all stages of the case, the respondents have opposed consolidation.

 

Ground two

 

Ground two is not a proper grounds (sic) of law. It should have been a misdirection or non-direction since the complaint is about the lower court finding that there was misapprehension(s) (sic) of facts. It is in the alternative a ground of fact.

 

Particular one and two are arguments and conclusions rendering the entire ground ambiguous and no particular of error supplied.

 

Ground three

 

There is no discernable complaint in this ground. Particular two is unrelated to the main ground. Particular one is unrelated to the record. They are both mere narratives without showing the error of the lower court. Ground four

 

Ground four

 

Particular one is argumentative and a conclusion.

 

Ground five

 

Both particulars to this ground are bad. They are mere legal arguments and conclusion. The entire ground did not show the error committed by the lower court.

 

Ground six

 

The particular is unrelated to the ground. While in the main ground reference is made to two and four AND #8216;storiesAND #8217; respectively, the particular talk (sic) of three stories. It is again a mere narration (sic) without showing how the lower court erred.

 

Ground seven

 

This ground is not one of law. At best, it is misdirection on the facts by the lower court. The particulars did not show any error of law. They are thus unrelated to the main ground. They are mere narratives.

 

It is humbly submitted that all the above grounds are bad and incompetent and this court is urged to strike them out in its entirety since it is not the duty of this honourable court to rewrite the grounds of appeal for the appellant or be involved in any AND #8216;surgical operation of the ground. I humbly rely on the following cases.

 

1. Paul Nwadike AND Ors. v. Cletus Ibekwe AND Ors (1987) 11-12;(1987) 4 NWLR (Pt. 67) 718 SCNJ 72, 102 (per Nwaemeke Agu JSC).

 

2. Alhaji A.M.F Agbaje v. Albert Youmen AND Others (1974) 3 W.S.C.A 6.

 

It is humbly submitted that if the grounds one to seven are bad and struck out, all the issues one to six raised for determination are without foundation and goes (sic) to no issue and this court also urged to strike out the six issues for determination.;

 

The respondent adopted the issues for determination in the appeal as formulated by the appellant. The appellant in his reply brief argued that the grounds of appeal raised by the appellant are valid and not liable to be struck out.

 

I now consider the objection as to the competence of the appeal. This is an appeal from the decision of a High Court given in its appellate jurisdiction. The appellant would therefore require the leave of the lower court or this court to bring an appeal unless the grounds of appeal are of law alone. I need therefore to examine each of the grounds of appeal in order to determine if it is of law alone since it is not disputed that the appellant did not obtain the leave of the lower court or this court. I must say that the argument of the appellant that the objection was not timeously raised is untenable. If the appeal before us requires leave to be a valid one and no such leave was obtained it is immaterial that objection was not timeously raised. This court would not have jurisdiction to entertain an appeal brought which has not satisfied the provision of section 241(1)(b) of the Constitution.

 

Ground one only contends that the order of consolidation made by the trial court was validly made and that the trial court considered the factors guiding a court in making an order for consolidation. The lower court held a contrary view. This grounds of appeal is clearly a ground of law which does not necessitate a consideration of whether the lower court properly made some findings of fact.

 

Ground two is in essence a repetition of ground one although framed in a different phraseology. It is in my view a ground of law. Grounds three to six are all grounds of law which are complaints against the manner the lower court viewed the order of consolidation made by the trial court.

 

Ground seven is distinctly a ground of fact or mixed law and fact. It is a complaint against the approach of the lower court to the findings of fact made by the court of trial. It is not possible for this court to consider this ground without examining the facts as found by the trial court and the treatment of such findings by the lower court. In order to raise this ground of appeal, the appellant needed to have first obtained the leave of the lower court or this court. The ground of appeal, that is, ground 7 must be and is accordingly struck out. The same thing is to be said about the eighth ground of appeal which is the omnibus ground complaining about the judgment of the lower court being unreasonable having regard to the weight of evidence. This is clearly a ground on the facts entailing a consideration of the evidence led. The appellant ought to have obtained the leave of the lower court or this court to raise the eighth ground of appeal. He however failed to do so. The said ground must be struck out. It is accordingly struck out.

 

There are thus before this court only six grounds of appeal in view of the two I have struck out above. The grounds surviving are 1 to 6 and they all more or less raise the same question which is whether or not the lower court was right in its views on the order for consolidation.

 

The respondent has also raised objection to the grounds of appeal on the ground that all of them do not conform with order 3 rule 2(2) of the Court of Appeal Rules 1981 (as amended). The Court of Appeal Rule 1981 (as amended) has since been replaced by the Court of Appeal Rule 2002. The respondents filed their brief on 18/5/2001 when the old rules were in force. Order 3 rule 2(2) of the old rules provides:

If the grounds of appeal allege misdirection or error in law, the particulars and the nature of the misdirection shall be clearly stated.;

 

With respect to the first ground of appeal, there is no doubt that particular 1 thereunder is only an argument. The same thing may be said of particular 1 under ground 3. Ground six is vague and does not show itself a reasonable ground of appeal. Generally speaking, all the grounds of appeal were poorly framed suggesting that counsel who drafted them had not exercised a proper care. But I think that only the sixth ground of appeal qualifies to be struck out. It is just possible to overlook the lacunae with the other grounds of appeal. I strike out the 6th ground of appeal.

 

All the issues considered by the lower court relate to the propriety of the order for consolidation made by the trial court on 29/7/98. The issues raised for determination by the appellant would appear to be easily condensable into one, namely ; whether or not the trial court was right to make the order consolidating the two suits before it for trial; and whether the consolidation hindered the trial court in fairly adjudicating over the dispute between the parties. I think that all the issues raised by the appellant could be considered under this one issue which covers all the appellant six issues.

 

I observed earlier in this judgment that the order for consolidation was first made by the Upper Area Court, Okpo. Later however, the suits consolidated as they were, were transferred to the Upper Area Court, Idah. Before the latter, the respondent counsel prayed that the suits be de-consolidated whilst the appellant counsel argued that they should not. Now, the relevant question is ; what was the material placed before the trial court to enable it determine whether or not to consolidate the suit or to continue to hear the suits in their consolidated form? Let me say straight away that there was no formal application supported by an affidavit placed before the trial court. The court notes for 29/7/98 where counsel made submission on the application to consolidate or de-consolidate read:

 

Ekpa: There are two defendants in this case. The 2nd defendant is Alhaji Okpanachi Ameh. He was made the 2nd defendant from Upper Area Court Okpo after due application for consolidation. Hereafter, the case proceeded into hearing and the plaintiff testified and called 5 witnesses before it was transferred to this court. The order is still subsisting.

 

Igoche: The matter started between plaintiff and the 1st defendant. The 2nd defendant who was not in the matter and who was occupying a separate piece of land took a writ against the present plaintiff in case No. CV 33/97 claiming his own father land and economic trees.

 

Plaintiff counsel brought oral application for consolidation which I vehemently opposed. However, the court consolidated the matter and we appealed against it. This appeal is dated 13/8/97 which appeal was still pending before the case was transferred to the Upper Area Court Okpo.

 

This matter is starting de novo. By that the appeal has been overtaken by events. We are not urging the court to set aside the order of consolidation as the parties are different, the portions of land are different. The 2nd defendant wants to pursue his case differently. He is ready with his witnesses in court. That is all.

 

Ekpa: The effect of the submission of my learned friend is that he wants the order of the U.A.C Okpo set aside varied. Firstly, since this court is not sitting on appeal over that case, it has no jurisdiction to make such order. If it (is) a variation, we submit that there is no sufficient material before this court for the variation. The submission of my learned friend that the two portions of land are different is a departure from their earlier stand.

 

This is because, they agreed at the Upper Area Court Okpo that the part of the land the 2nd defendant is claiming from the plaintiff is the same with one the plaintiff is claiming from the defendant. To the plaintiff, the land is only one and is giving evidence to cover all of them. To separate the cases will lead to calling the same witnesses twice and giving the same evidence twice. That will put him into great hardship. On the other hand, on the part of the defendants, nothing stops them from calling different witnesses or even calling the other. In that case, the court will treat their case as counter-claim. the object of consolidation is to avoid multiplication of actions over the same subject matter.

 

I urge the court to look into the proceedings of the Upper Area Court Okpo for guidance.;

 

After the above submission by the respective counsel for the parties, the trial court proceeded to deliver its ruling. The ruling is relevant and I think it is helpful to reproduce it in full. It reads:

 

Ruling:

 

Two cases CV.006/97 between Mod Adama and Amonye Onoja on the one hand and CV.33/97 between Alh. Okpanachi Ame-Ogba and Mod Adama on the other hand were consolidated by the Upper Area Court Okpo and tried together under CV.006/97 before it was later transferred to this court. Amonye Onoja was the 1st defendant while Alhaji Okpanachi Ameh-Ogba was the 2nd defendant. There was an appeal against this order of consolidation to the High Court Ankpa but the appeal could not be heard before the case was transferred to this court. What therefore is before us is not a separated case but a consolidated case.

 

Mr. Igoche for the defendants wants the order of consolidation set aside and the two cases tried separately on the basis that there is no reason for it. He said the parties are different and the portions of land are also different.

 

On the part of the plaintiff, Mr. Ekpa urged us not to separate them.

 

Firstly, he said that this court not sitting on appeal over the order of the transferring court cannot set aside the order made by the Upper Area Court Okpo. To use his own words, we have no jurisdiction to do so.

 

Secondly he said if we have to vary the order, there are not enough materials for us. He said that the plaintiff looks at the two portions as only one over which he has sued the 1st defendant and not two.

 

We want to deal with the first issue raised by Mr. Ekpa to the effect that we have no jurisdiction to disturb the decision of the Upper Area Court Okpo. We think that assertion should have been qualified. When that court gives a final decision, we cannot tamper with it. In a ruling such as the one in hand on point of procedure, we are not bound by it. The reason is that this matter is starting de novo and whatever should be done to ensure smooth hearing of the case can be done. If what he says is correct, it means that we are bound to admit in evidence every item of exhibit admitted by that court and to reject anyone rejected by that court. The case as we said is starting de novo before us and our own understanding of the law. Our reasonings are different. No court decision can be binding upon another of co-ordinate jurisdiction. It is only persuasive and that is all. We say no more on this.

 

On the issue before us, since the plaintiff looks at the two portions as one and the same the consolidation should be allowed to stand. If however the defendants look at it as different, they should adduce evidence to show the difference during the trial.

 

The 2nd defendant for instance knows where his land starts from and stops. So also is the 1st defendant.

 

Each knows his source of title and should be free to prove it. Infact, their case can never be adversely affected by the consolidation. The case of the 2nd is to be treated counter-claim so that if he should succeed he will take the portion as per his claim.

 

On the whole therefore the application for separation is refused.;

 

From the arguments of counsel and the ruling of the trial court, the following facts emerged:

 

1. The AND #8216;respondentsAND #8217; counsel was of the view that (1) the lands in dispute in the consolidated suits were not the same. (2) That the parties in the consolidated suits were also not the same. (3) That the respondents would rather pursue their suit separately.

 

1. The appellant counsel was of the view that (1) The land claimed by the 2nd defendant was the same as the one the plaintiff was claiming from the 1st defendant and (2) it would be convenient to parties from the angle of calling witnesses if the matter was consolidated.

 

1. That trial court took the view that since the plaintiff was of the view that the lands in dispute in his suit were the same the suit should remain consolidated. Further the trial court thought that parties were at liberty to show the title they relied upon.

 

When the matter went on appeal before the court below, it said:

 

It is our view that consolidation is necessary where the law and facts to be applied are so identical that it is convenient to have the two suits tried together. But consolidation is not to be made on the mere presumption or probability as in this case that common question of facts or law should arise. It is only when those common questions of law and fact have infact actually arisen that the stage is matured on application to consolidate. We quicken to reiterate here that the primary aim of consolidation is certainly not to avoid a multiplicity of suits but rather to effect an economy in time and costs. In the case of Nweke Enwena and Anor. v. Peter Udemezue and Or. (1972) 2 ECSLR 1 where the case of Payne v. British Time Recorder Co. (1921) 2 K.B 16. It was re-echoed, it was held that consolidation is purely at the discretion of the court and that the main purpose of consolidation is to save costs and time and is not usually ordered unless there is some common question of law or fact having sufficient importance in proportion to the rest of the subject matter of the action, AND to tender it desirable that the whole should be disposed off at the same time.;

 

At page 65 line 16, after the exercise of the discretion to consolidate the court now finds itself with just two stories instead of four stories by the original claim and I quote.

 

In comparing these two stories, therefore, one finds that while the story of acquisition by the plaintiff and his witnesses is straight forward, consistent and supportive, the story by each of the defendant and their common witnesses is in consistent, divergent and contradicting. Was it Aba who acquired the land or Adigba. Was it Onoja Ohiya or Ameh Ogba, who among them actually acquired the land? Or was it Onoja as the DW3 said.;

At this point the court reasoned as if there was one plot while at page 61 lines 10 ;12 the court found that the lands are adjacent to each other. That is not all, these findings shows (sic) the 1st and 2nd defendants having a common ancestor and which is not the case by the evidence.

 

To our mind the whole thing is a coerced union of unholy wedlock which is bound to break down irretrievably. We are confident that this is a clear case where the court in exercising his (sic) discretion was in disregard of legal principles and also under a misapprehension of the facts so much as that justice has not been glaringly dispensed with and we hold as such. It is for these reasons that we hereby set aside the judgment and order a retrial. The trial should be in Okpo Upper Area Court.;

 

The simple approach to resolve the issue in dispute is in my view a consideration of the standard factor to be borne in mind in ordering the consolidation of two or more suits and to see whether such factor were met in this suit before the trial court before the order for consolidation was made. In this connection, it is helpful to bear in mind that both parties had not been in agreement that the suits be consolidated. Whilst the plaintiff wanted it, the defendants were against it.

 

The court below in its judgment rightly called to mind the principles governing the exercise of discretion by a court in granting the order to consolidate two suits. In Nasr v. Complete Home Enterprises (1979) 5 S.C 1 at page 11, the Supreme Court per Irikefe JSC as he then was said:

 

The main purpose of consolidation, it has been said, is to save costs and time, and therefore it will not usually 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 actions AND to render it desirable that the whole should be disposed of at the same time.; See Payne v. British Time Recorder Co. (1921) 2 K.B page 16.;

 

In Toriola v. Williams (1982) 7 S.C 27 at page 58, the Supreme Court per Obaseki JSC discussing the nature of consolidation said:

There is a discretion to consolidate pending actions, that is to say, actions in which the writ has been served. (See The Helenslea (1802) 7 P.D. 57) and in which judgment has not yet been obtained and satisfied. It is clear from the rules that no application for consolidation will be entertained until pleadings are delivered and issues joined.

 

There is no evidence whether that the pleadings in the earlier suit have been delivered and issues joined and as such there would have been no basis for any application for consolidation.;

 

As I observed earlier in this judgment, the two suits which were consolidated and which are now the subject-matter of this appeal were commenced at the Upper Area Court, Okpo. The plaintiff sued the 1st defendant in respect of a piece of land at Oko-Amaja. The 2nd defendant in the same court sued the plaintiff in the earlier suit in respect of a piece of land described as being at Iga-Ikeje. It is common knowledge that the practice of filing pleadings is not in use at these Area Courts. In consequence, it was not possible to discover from a mere perusal of the parties writs if there was some common question of law or fact bearing sufficient importance in proportion to the rest of the issues to be decided in the two cases. The plaintiff counsel did not file a formal application for consolidation. Rather from the bar, he stated that the lands in dispute in the two suits were the same, an assertion which the defendants counsel disputed. Still however the Area Court consolidated the two suits.

 

I think that a good measure of the blame for the improper manner these suits were consolidated should be placed at the feet of plaintiff counsel. Even if it was true that the lands in the two consolidated suits were the same, this would not form a sufficient basis to consolidate both suits for hearing. There could be several other reasons why consolidation could not be made. There is the important issue of the sources of title of the parties to be considered on the case. The evidence to be led not being disclosed at the stage the application to consolidate was made, the trial court would appear to have foreclosed a liberal exercise of its discretion arising from the nature of the case to be made by each of the parties in their evidence.

 

The lower court made the point that the applicable Area Courts Law did not make provision for consolidation but that it did not see why on principle the discretion to grant an order for consolidation was beyond an Area Court. Nothing in this appeal turns on the power of an Area Court to make an order of consolidation. I therefore make no further comments on it since there is in any case no appeal on the point. But it seems to me that the grant of an order of consolidation involves consideration of matters of a technical nature such that a court called upon to make the order ought to assess carefully and with caution the nature of the material placed before it at the stage when it is called upon to make the order.

 

In Attah v. Nnacho (1964) 1 All NLR 313, NMLR 28 Idigbe JSC at page 316 at 317 said:

consolidation of suits is a measure adopted for the convenience of parties and for purposes of saving expense in litigations In Mbaegnusi Obiekweife AND Ors v. Unumma AND Anor. (1957) 2 FSC 70 at 71, Foster Sultan F.C.F held that an order for consolidation of actions is one of convenience, and either the Judge who made the order or any other Judge before whom the case comes for trial court has a discretion to vary it.;

 

It seems therefore that the approach to an order for consolidation is not inflexible. It is made for the convenience of parties for the purpose of saving time and costs. While its grant does not depend entirely on the concurrence of both parties, it is important to bear in mind that the order should not needlessly be rammed down the throats of a non-consenting party. What was done in this case was to force the respondents to have the case consolidated. The approach ended up creating confusion because as the trial court later said in the judgment, the two lands were adjacent. This means that they were not the same and so the basis for the joinder in the first place was nonexistent.

 

I agree with the lower court that the order of consolidation did not promote the ends of justice. Rather it stifled the parties in the full presentation of their case and led at the end of the day to a miscarriage of justice.

 

I agree that it is fair that the case be heard de novo before the Okpo Upper Area Court I therefore affirm the judgment of the lower court. I dismiss this appeal and award N5,000.00 costs to the respondents.

 

IBRAHIM TANKO MUHAMMAD, JCA.:I had the privilege of reading before now, the judgment of my learned brother, Oguntade, JCA. I agree with his reasoning and conclusions. I abide by all orders made in the judgment including order as to costs.

 

ALBERT GBADEBO ODUYEMI, JCA.:I had the advantage of reading in advance the judgment just delivered by my learned brother Oguntade, JCA.

 

I am in complete agreement with the reasonings in the judgment and the conclusion to dismiss the appeal. I adopt the same as mine.

 

I also abide by the other orders contained in the judgment.

 

Cases referred to in the judgment

Abu v. Gov., Benue State (1981-82) B.S C.R. 57.

Agbaje v. Younan (1974) 3 W.S.C.A 66.

Akibu v. Oduntan 4(2000) 10 WRN 8;(2000) 7 SCNJ 189; (2000) 13 NWLR (Pt. 685) 446.

Anabaronye v. Nwakaihe(1997) 1 SCNJ 161;(1997) 1 NWLR (Pt. 482) 374.

Attah v. Nnacho (1964) 1 All NLR 313; (1965) NMLR 28.

Enwena. v. Udemezue (1972) 2 ECSLR 1.

Iloabuchi v. Ebigbo (2000) 4 SCNJ 46;(2000) 8 NWLR (Pt. 668) 197.

Nasr v. Complete Home Enterprises (1977) ANLR 93;(1977) 5 S.C 1.

Nwadike. v. Ibekwe (1987) 11-12 SCNJ 72; (1987) 4 NWLR (Pt. 67) 718.

Obiekweife v. Unumma (1957) SCNLR 331;(1957) 2 FSC 70.

Payne v. British Time Recorder Co. (1921) 2 K.B 16.

Toriola v. Williams (1982) 7 S.C 27.

Statute referred to in the judgment

Constitution of the Federal Republic of Nigeria 1999 s. 241 (1)(b).

Rules of court referred to in the judgment

Court of Appeal Rules 1981 (as amended) Or. 3 r. 2(2)