3PLR – KASSAB V. ULASI

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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KASSAB

V.

ULASI

COURT OF APPEAL

(LAGOS DIVISION)

WEDNESDAY, 18TH APRIL, 1990.

CA/L/142/89.

3PLR/1990/141  (SC) 

OTHER CITATIONS

 

 BEFORE THEIR LORDSHIPS:

BOLARINWA OYEGOKE BABALAKIN, J.C.A. (Presided)

FRANCIS OLISA AWOGU, J.C.A.

UMARU ATU KALGO, J.C.A. (Read the Leading Judgment)

 

BETWEEN

1. RICK N. KASSAB
2. PAVEX INTERNATIONAL COMPANY
3. AFRICAN INSURANCE COMPANY LIMITED

 

AND

1. PAUL ULASI
2. ULASI MOTORS (NIGERIA) LIMITED
3. J.A. EZE

 

MAIN ISSUES

PRACTICE AND PROCEDURE – APPEAL – Exercise of discretion by trial court -Attitude of appellate court.

PRACTICE AND PROCEDURE – COURT- Consolidation of cases – Conditions precedent – Duty on court in re­spect thereof.

PRACTICE AND PROCEDURE – COURT – Exercise of discretion – What to consider.

INTERPRETATION OF STATUTES – Order 38 rule 7(I) High Court of Lagos State (Civil Procedure) Rules, 1972 – How construed.

PRACTICE AND PROCEDURE – Consolidation – Order of – Whether can be varied by court which gave it.

PRACTICE AND PROCEDURE – Consolidation of cases – When court would order – Relevant considerations.

PRACTICE AND PROCEDURE – Discretion of court – Conditions prece­dent to the exercise thereof.

PRACTICE AND PROCEDURE – Exercise of discretion by trial court -At­titude of appellate court.

PRACTICE AND PROCEDURE – Transfer of cases from one Judge to another – Power of – Where resides.

 

REPRESENTATION

Alhaji K. A. Tinubu (with him, A. Okulaja) -for the ]stand 2nd Appel­lants.

1. O. Shogbola -for the 1st Respondent. S. S. Ezugha -for the 3rd Respondent.

 

KALGO, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling of Agoro, J., of the High Court of Lagos dated the 26th of May, 1989, in which he refused to order the consolidation of two civil cases filed by the plaintiffs/respondents in the Lagos High Court. The two cases concerned were registered in the said High Court as LD/966/86 filed on 16th July, 1986 and LD/1000/86 filed on 22nd July, 1986. The parties to both cases have filed their pleadings including counter-claims and replies thereto. Case NoLD/ 966/86 was in the cause List for High Court No. 18, Lagos, before Ope-Agbe, J., and case No. LD/1000/86 was in the cause List for the High Court No.2, Lagos, before Agoro, J. The counsel representing the plaintiff and defen­dants in LD/966/86 are the same counsel representing the plaintiffs and de­fendants in LD/1000/86. On or about the 22nd of June 1988, the learned counsel for the defendants/appellants, filed a motion on notice before Agoro, J., praying the court to order the consolidation of the said two cases so that they could be tried together. The motion also contained a schedule setting out the reasons why consolidation of the cases was being sought. The motion was supported by an affidavit of 18 paragraphs sworn to by one of the defendants/appellants Rick Nadim Kassab. This was followed by a further­ affidavit of 8 paragraphs. The plaintiffs/respondents also filed a counter-af­fidavit of 15 paragraphs.

 

At the time of filing this motion, hearing in the case No. LD/966/86 be- . fore Ope-Agbe, J., had not started but in the case No. LD/1000/86, before Agoro, J., the first witness for the plaintiff/respondent had already given evidence in chief and his cross-examination was in progress.

 

After several adjournments, the learned trial Judge Agoro, J., heard arguments on the motion on the 7th of March 1989 and adjourned to 26th of May 1989 for a ruling. On 26th May, 1989 the learned trial Judge, delivered a considered ruling on the motion whereby he refused the prayer to consoli­date the two cases and adjourned the continuation of cross-examination in the substantive case to 12th September, 1989. On the 1st of June, 1989, the defendants/appellants filed an application before Agoro, J., for leave to ap­peal to this Court from his ruling of 26th May, 1989 and for stay of proceed­ings in the substantive action before him. After hearing arguments on the application, the learned trial Judge granted leave to appeal against his ruling but refused to stay the proceedings in the substantive action before him.

 

On the 6th of July, 1989, this court granted extension of time to the de­fendants/appellants within which to appeal against the said ruling of Agoro, J., dated 26th May, 1989, and their Notice of Appeal dated 16th June 1989, was deemed properly filed and served. This court also granted them an order for stay of proceedings in the two cases before the Lagos High Court pending the determination of their appeal. In this Court, briefs were filed and ex­changed between the parties. In the Appellants’ brief, the following issues for determination were set out:­

 

1. “Whether the learned trial Judge exercised his discretion rightly and or exercised the same judicially and judiciously when he re­fused to order a consolidation of the two suits.

 

2. Whether the learned trial Judge exercised his discretion rightly when he refused the alternative submission to him, that where the court was not disposed to order a consolidation of the two suits, the court should consider transferring suit LD/966/86 to his court for this suit to be heard together with suit LD/1000/86, or for the two suits to be tried immediately one after the other by him (Hon. Justice I. O. Agoro) to avoid “the risk which would be quite appalling, that the trial will or might produce different deci­sions or judgments.”

 

The learned counsel for the respondents in their respective briefs adopted the first issue for determination formulated by the appellants, but submitted that the second issue could not properly be raised in this appeal because the issue was not raised, argued or prayed for in the alternative, be­fore the trial court in the application for consolidation.

 

In the application for consolidation dated 22nd June, 1989, the appel­lants prayed for:-

 

“(1)   An order that the above-mentioned actions be consolidated and thereafter be carried on as one action;

 

(2)     for all necessary and proper directions as to the future conduct of the said consolidated action.

 

(3)     That the costs of the above-mentioned actions including therein the costs of and incidental to this application be costs in the said consolidated action.”

 

For further or other orders as this Honourable Court may deem fit in the cir­cumstances of the case.”

 

From the prayers in the motion paper, it is apparently clear that there was no alternative prayer for the two suits to be tried immediately one after the other. Also, in the arguments on the application before the trial Judge on the 7th March, 1989, as contained on pages 5 to 6 of the record of appeal, there was nothing to indicate that the point was made for the alternative prayers, and the ruling of the learned trial Judge on the application did not mention anything about it. The arguments of the learned counsel for the ap­pellants in his brief that he made the point in his submissions to the court during the hearing of the application is not supported by the record of ap­peal, and he conceded to this himself. I do not agree with counsel for the ap­pellants that the alternative prayer can be read into the words at the end of the motion “for further or other orders as this Honourable Court may deem fit to make in the circumstances of the case.” Also paragraph 5 of the schedule to the motion paper on page 9 of the record of appeal, merely sets out one of the grounds “upon which the order of consolidation” was sought and is not a prayer in the alternative. The appellants’ counsel has not filed any application in this court seeking the leave of this court to allow him to argue a fresh point of law not raised before the trial court and even then he had to satisfy the court of the conditions precedent to such a grant as laid down in line of cases of this court and the Supreme Court.

 

For the reasons stated above, I am satisfied and I agree entirely with the learned counsel for the Respondents, that the only issue for determination which can properly be raised in this appeal is issue number one set out by the Appellants.

 

In this court, the learned counsel for the Appellants and the Respon­dents adopted their written briefs of argument and relied entirely on them for the purposes of this appeal.

 

The only issue in this appeal is whether the learned trial Judge exercised his discretion properly when he refused to order the consolidation of the two cases concerned. There is no doubt that the learned trial Judge had a discre­tion whether to order consolidation or not in the circumstances but any exer­cise of a discretion such as this, by any court must be done judicially and judi­ciously. It is also well-established that while the discretion must not be exer­cised in vacuum, the party seeking the exercise of that discretion, must pro­vide the necessary material to enable the court to exercise the discretion in his favour.

 

The application before the trial court was for consolidation of cases Nos. LD/966/86 and LD/1000/86 to be tried together as one action. The grounds upon which the order for consolidation was sought were (pages 8-9 of record of appeal):­

 

“1.     That common questions of law and facts bearing sufficient im­portance in proportion to the rest, arise in both actions.

 

2. That the rights to reliefs claimed in both actions are in respect of and arise out o the same transaction.

 

3. That the plaintiffs in both actions are represented by same coun­sel-Messrs H.O. Sogbola and Company with Moji George, Esq.

 

4. That same witnesses and same documents will be called/tendered by all the parties in the prosecution/proof of their cases in both ac­tions, thus the said common witnesses will be saved the expense of two attendances; and that consolidation of the two actions will save costs and time.

 

5. That it is desirable that both actions be tried by the same Judge to avoid the risk of different trials of both actions producing diffe­rent decisions or judgments.

 

In dismissing the application the learned trial Judge in his ruling ob­served on page 3 of record of appeal as follows:­

 

“Applying the above principles to the present application, it would be observed that while the action in this suit is part-heard before this court, the action in Suit No. LD/966/86 is pending be­fore Hon. Justice Ope-Agbe in Court No. 18, Lagos. While it is conceded that the same learned counsel is appearing for the plaintiffs in both actions, yet upon close examination of the issues raised on the pleadings filed in both actions, it could not be said in my view that there exists a common question of law or fact bear­ing sufficient importance in proportion to the rest of the action to render it desirable that both actions in LD/1000/86 and LID/9661 86 should be disposed of at the same time. Nor do I consider that any time and costs would be saved by an order of consolidation.”

 

The application was brought pursuant to Order 38 rule 7(1), (2) and (3) of the High Court of Lagos State (Civil Procedure) Rules 1972, and the inhe­rent power of the Court. Rule 7(1), (2) and (3) of Order 38 provides:­

 

”7(1) Actions pending in the High Court may be consolidated by order of the Court or of a Judge in Chambers where it ap­pears that the issues are the same in all the actions, and can therefore be properly tried and determined at one and the same time.

 

(2)     An order to consolidate may be made where two or more actions are pending between the same plaintiff and diffe­rent defendants, or between different plaintiffs and the same defendant, or between different plaintiff and diffe­rent defendants:

 

Provided that where actions are brought by the same plain­tiff against different defendants, they will not be consoli­dated without the consent of all parties unless the issues to be tried are precisely similar.

 

(3)     Application for consolidation may be made by summons or notice for directions in Chambers or may be made by mo­tion in Court on notice.”

 

It is now left for me to consider the provisions of Order 38, rule 7 as it may properly be applied to the facts and circumstances of this case. According to rule 7(1) of the said Order, consolidation of two or more ,cases is possible where the issues are the same and can properly be tried and determined at the same time. In case No. LD/966/86, the writ of summons filed in the trial court, on the 16th of July, 1986, (pp. 48-49 of record) reads:­ ”The Plaintiffs claim against the defendants jointly and severally is for the sum of *530,000.00 being balance of N670,000.00 due and payable to the Plaintiff by the defendants for money had and received by the defendants and for consideration that has totally failed.

 

PARTICULARS:- The Plaintiff paid the defendants a total sum of N670,000.00 for the supply of Frozen Fish. The defendants did not supply the frozen fish or any fish at all.

 

The defendants paid back to the plaintiff the sum of N140,000.00 leaving a balance of N530,000.00 still out­standing and unpaid AND the plaintiff claims N530,000.000 with interest thereon.”

 

The amended statement of claim of the plaintiff/appellant in this case dated 23rd of June 1988 (pp.50-54 of record) further clarified the issue in the following paragraphs:­

 

“6.     About the 20th December 1985, the plaintiff and the said Mr. Eze met the 1st defendant in his office at Apapa Lagos to make the final (installment) payment, for the supply of the motor parts and after making the payment 1st defendant offered Mr. J.C. Eze a shipload of frozen fish for sale.

 

7. Mr. J.C. Eze said he was not interested and he asked the plaintiff whether he would be interested in buying the frozen fish, The plaintiff said he was interested.

 

9. The total cost of the frozen fish was N1,350,000.00 and the 1st defendant requested that the plaintiff pay down 50% of the total price and the balance of the 50% to be paid when he delivered the frozen fish.

 

11. 1st defendant informed the plaintiff that the fish would be deli­vered within 2 months.

 

12. On the 21st day of December 1985 plaintiff obtained a certified cheque for the sum of N300,000.00 from the Co-operative and Commerce Bank Limited Lagos Branch in the name of Paves In­ternational Company Limited and in the company and presence of Mr. Eze, plaintiff paid the 1st defendant the said certified cheque.

 

15. After paying the deposit of N670,000.00 to the 1st defendant for the supply of the fish, the plaintiff called on 1st defendant on a number of occasions to know whether the frozen fish has arrived from Argentina but no fish arrived.

 

16. 3 months later when the 1st defendant could not deliver the fish or produce the shipping documents on the frozen fish, the plaintiff demanded from the 1st defendant, the return of the sum of N670,000.00 he paid to 1st defendant as the 50% deposit for the fish.

 

22. The plaintiff his already received from the 1st defendant the said sum of N140,000.00 out of his claim of N670,000.00 leaving a ba­lance of N530,000.00 still outstanding and unpaid.”

 

From the writ of summons and the amended statement of claim in the case No. LD/966/86, it is very clear that the sum of N670,000.00 alleged was paid to the appellants to supply frozen fish within stipulated time. When he failed to do so, a refund was demanded out of which only N140,000.00 was paid leaving a balance of N530,000.00 which the plaintiff claimed in the action. The defendants/appellants in their statement of Defence on pp. 55 and 56 of record of appeal merely denied that there was any transaction between them and the plaintiff/respondent concerning frozen fish but admitted in parag­raph l l of the statement of Defence that they made a refund to the respon­dent of N140,000.00. They did not explain further what the N140,000.00 re­fund was for. The parties have clearly joined issue on this claim.

 

In the second case No. LD/1000/86 “the plaintiffs’ claim against the de­fendants jointly and severally, is for the sum of N1,329,473.54k being money due and payable to the plaintiffs by the defendants for money had and received by the defendants and for a consideration that has totally failed. The particulars of the claim are that “The plaintiff paid the defen­dants a total sum of N1,329,473.54k for the supply of motor spare parts. The ‘defendants did not supply the motor spare parts and have not refunded the said sum of N1,329,473.54k in spite of repeated demands. And the plaintiffs claim N1,329,473.54k with interest.”

 

This was followed by the plaintiffs amended statement of claim in which the following paragraphs are relevant:­

 

“6.     Some time in November 1985, the plaintiffs were introduced to the 1st and 2nd defendants as suppliers and importers of motor and machines spare parts.

 

7. Consequently and on the 3rd day of December 1985 the 1st de­fendant entered into an agreement with the plaintiffs for the sup­ply and delivery of motor spare parts to the plaintiff at an agreed sum of N821,577 which the plaintiff paid to the 1st defendant – The plaintiffs will rely on this agreement during trial.

 

8. Sometimes after the signing of the agreement, the 1st defendant came back to the plaintiffs stating that prices had gone up and the plaintiffs had to pay additional sum thereby bringing the total sum paid by the plaintiffs to the 1st defendant to N1,329,473.54k 9. The Plaintiffs paid to the first defendant the said sum of N1,329,473.54k in the following manner:­

 

(a)     N100,000 cheque dated 31/12/85 in the name of 2nd defen­dant (Paves International Company Limited) also on the instruction of 1st defendant.

 

(b)     N100,000 cheque dated 10/12/85 in the name of 2nd defen­dant (Paves International Company Limited) also on the instruction of 1st defendant.

 

(c)     N433,650 cheque dated 18/17185 in the name of the 2nd de­fendant (Pavex International Company Limited) on the in­struction of 1st defendant.

 

(d)     N387,927. cheque dated 18/12/85 in the name of the 2nd de­fendant (Pavex International Company Limited) on the in­struction of 1st defendant.

 

(e)     N307,896.54k ) cash payment to the 1st defendant.

 

TOTAL N1,329,473.54k

 

10. The 1st defendant was to deliver the motor spare parts within a period of 2 months.

 

11. The 1st defendant failed to deliver the motor spare parts on the expiration of the 2 months and the plaintiff demanded for the re­fund of the said sum of N1,329,473.54k.

 

13. To guarantee repayment of the said sum of N1,329,473.54k the 3rd defendant, the African Insurance Company Limited, offered to raise a performance Bond in favour of the plaintiff to guaran­tee refund of the said sum of N1,329,473.54k.

 

14. The plaintiff accepted this offer and on the 17th day of April 1986, the 2nd and 3rd defendants jointly executed the perfor­mance Bond-policy No. AFG590/L by which the defendants hold and firmly bind themselves unto the plaintiffs for the payment of the said sum of N1,329,473.54k to the plaintiffs on or before 16th July 1986.”

 

In the statement of Defence of the Defendants in this matter (see pp.26­35 of record of appeal) the issue of the performance bond was not denied ex­cept that while the 1st and 2nd Defendants alleged coercion and threat of kidnapping and blackmail before taking it, the 3rd Defendant alleged that the 1st and 2nd Defendants fraudulently failed to disclose certain material facts to them (3rd Defendant) when making to proposal which if they knew then, they would have declined to the proposal. The performance bond ac­cording to 3rd Defendants’ pleadings, was for the sum of N1,329,473.54k, for the supply of motor spare parts, in favour of the plaintiffs/respondents. The 1st and 2nd Defendants in their defence admitted receiving the plain­tiffs/respondents the sum of N1,321,577.00 and not N1,329,473.54k. From all these, it is very obvious that this constituted another transaction for sup­ply of spare parts and by the pleadings, issues were joined.

 

From the above, I can reasonably conclude that the case No. LD/966/86 and LD/1000/86 are for different subject matter. In the former there is one plaintiff and two defendants, and in the latter there are three plaintiffs and three defendants. It is not in dispute however that the counsel for the plain­tiff or plaintiffs in both cases are the same; so also the counsel for the Defen­dants in both cases are the same. But these cases are not before the same Judge in the High Court. Case No. LD/966/86 is being dealt with ’by Hon. Justice M.A. Ope-Agbe in High Court No. 18 and case No. LD/1000/86 is being dealt with in High Court No. 2 before Hon. Justice 1.0. Agoro. In the LD/1000/86 case the 1st witness for the plaintiff/respondent has given evi­dence and was being cross-examined by the appellants, when the latter filed the application for consolidation which was refused – hence this appeal. No hearing has actually started in the LD/966186 case before Ope-Agbe, J., at the material time.

 

The learned appellant’s counsel in his brief of argument conceded that the question of consolidation of actions is an exercise of judicial discretion and that an appellate court does not normally interfere with an exercise of such discretion by a lower court except for certain reasons, such as that from the facts and circumstances of the case, the appellate court is satisfied that the discretion has been wrongly exercised. See Anisiuba v. Emodi (1975) 2 S.C.9 at 12. Therefore the learned trial Judge in this instant case has a discre­tion, on the facts presented to him and all the documents before him, and having regard to the applicable law and legal principles, to grant or refuse the application for consolidation. But where he goes wrong in either not ap­plying the law or legal principle properly to the facts and circumstances be­fore him or he fails to consider certain things which he ought properly to con­sider, this court can interfere with the exercise of his discretion. See Enekebe v. Enekebe (1964) 1 All NLR 102; Ntukidem v. Oka (1986) 5 NWLR (Pt.45) 909; and Nwabueze v. Nwosu (1988) 4 NWLR (Pt.88) 257.

 

Generally suits are consolidated for convenience of parties and in order to reduce costs. Any order of consolidation based on convenience can be varied by the Judge who made it or any other Judge seised with the matter.

 

See Obiekweife v. Unumma (1957) 2 FSC 70 at 71; (1957) SCNLR 331 Attah v. Nnacho (1964) 1 All NLR 313 at 317. In proper cases, the court will grant an application for consolidation only after pleadings are delivered and issues joined. This is because at that stage the subject matter of the cases and the issues involved in them are very clear. But even where pleadings are de­livered, it has been settled that an order of consolidation of suits can only be made, when there is some common question of law or fact bearing sufficient importance in proportion to the rest of the subject matter to make it neces­sary that the whole matter should be disposed of at the same time. See Payne v. British Recorder Company (1921) K.B. 16, Nasr v. C. H. E. Limited (1979) . 5 S.C. 1; and Ifediorah v. Ume (1988) 2 NWLR (Pt.74) 5 at p.9

 

According to rule 7(1) of Order 38 of High Court, of Lagos (Civil Proce­dure) Rules, 1972, actions pending in the High Court, may be consolidated “where it appears that the issues are the same in all the actions and can there­fore be properly tried and determined at one and the same time.”

 

In the instant case, the writ of summons and the pleadings in respect of each of the two cases sought to be consolidated, clearly revealed a great dif­ference in the issues or subjects involved so much so that in my view, there is no suitable likelihood of both being tried together and determined at the same time. The fact that the parties involved in both cases are also slightly different or that they are represented by the same counsel does not, in my view, help the situation. There are very clear differences between the mat­ters in issue in the two cases especially when one closely examines the diffe­rent defences put forward in the pleadings which I have examined earlier in this judgment.

 

Another difficulty which is apparent in this application is that the two actions are in 2 different courts before 2 different Judges and one of the cases is part-heard. There is the further difficulty that the application for consolidation was made in the court with the part-heard case before Agoro, J., so that even if the learned Judge was disposed to allow consolidation , he would meet the difficulty of ordering the transfer of the other case before Ope-­Agbe, J., to himself. This, He cannot do, because by the High Court Law of Lagos State Section 56(1) and (2) only the state Chief Judge has the power to transfer a case from one Judge to another in the State. This is one factor which may affect the Judge’s discretion in ordering the consolidation; as it is not desirable that he applies to the Chief Judge to transfer the case to himself for this purpose.

 

From what I found earlier in this judgment, the facts disclosed in the writ of summons and pleadings in the two cases namely LD/966/86 and LD/ 1000/86, gave rise to different issues, and did not arise out of the same trans­action. One was for sale and delivery of frozen fish under a verbal agreement whereas the other was for supply of motor spare parts under a written agree­ment which later involved a performance bond as another issue by itself. Therefore in my opinion, there is common question of fact or law involving the two suits bearing sufficient importance in proportion to the rest of the ac­tion which will render it desirable that the two actions be disposed at the same time. I am also in complete agreement with the learned trial Judge when he said in his ruling on p.3 of the record of appeal:­

 

“Nor do I consider that anytime and costs would be saved by an order of consolidation. Indeed the present application as well as other interlocutory, applications are delaying the conclusion of hearing in suit LD/1000/86.”

 

For the above reasons, I find that this appeal lacks merit. It is accordingly dismissed. I award N250.00 costs to each set of respondents to be paid by the appellant.

 

BABALAKIN, J.C.A.: I agree with the reasoning and conclusion reached in the judgment just delivered by my learned brother Kalgo, J.C.A.

 

I too dismiss the appeal.

 

I abide by the order of costs as contained in the judgment.

 

AWOGU, J.C.A.: I agree. I have nothing useful to add. I abide by the order on costs.

 

Appeal dismissed.