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.