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:-