Naboth Okwuagbala & 3ors V Margret Ikwueme & 2ors (2012)

LAWGLOBAL HUB Lead Judgment Report

S. N. ONNOGHEN, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Holden at ENUGU in appeal No. CA/E/152/2000 delivered on the 28th day of May, 2003 in which the court dismissed the appeal of the present appellants against the ruling of the High Court of Anambra State, Holden at Nnewi in suit Nos. HN/180/97; HN/181/97 and HN/183/97 delivered on the 16th day of July, 1999 in which the court consolidated the said suits for trial and determination.

The facts of this case include the following:-

The respondents in this Court instituted suit NOS. HN/180/97; HN/181/97 and HN/183/97 as plaintiffs against the appellants as defendants claiming damages jointly and severally, arising from an alleged violation of their rights. Pleadings were filed and exchanged between the parties after which the respondents, as plaintiffs, filed an application for an order consolidating the three suits for trial and determination. The parties to the actions are the same and are represented by same counsel. The three suits still pends before the Nnewi Division of the High Court of Anambra State. There was no counter affidavit to the affidavit in support of the motion for consolidation of the suits.

After conclusion of argument by both counsel, the learned trial judge granted the prayers in its said ruling which ruling was affirmed by the lower court in the judgment on appeal which is the subject of the instant further appeal.

Learned Counsel for the appellants, CHIEF H. B. ONYEKWELU, in the appellants’ brief of argument filed on 9th April, 2004 and adopted in argument of the appeal on the 28th day of September, 2010, has identified the following issues for determination:-

“1. Whether the subject-matter of three consolidated suits were not the respective plaintiff where the dispute is whether the respective plaintiffs were unlawfully arrested and detained, if not, was consolidation of the three suits in any event right, in the circumstance

2. Whether the mere failure to reply to the issue raised in the respondents’ preliminary objection was fatal to issue No. 2 of the appellants’ Brief of argument in the Court of Appeal.
3. Whether the same defence is available to the appellants in all the suits.
4. Did the plaintiffs/respondents claim the same relief against the appellants

It should be noted at this stage that the appellants did not file any counter affidavit to challenge the facts deposed to in support of the application for consolidation which facts were found proven by the trial court in its ruling on the matter. Secondly, the lower court affirmed the findings and holdings of the trial court in its judgment now on appeal. This means that in respect of the facts relevant to the consideration of an application for consolidation, there is concurrent findings by the lower courts.

The learned counsel for the respondents T. U. OGUJI ESQ in the respondents brief of argument deemed filed and served on 27/9/2006 has raised a preliminary objection against grounds 1 and 3 of the grounds of appeal and issues 1, 3 and 4 formulated by learned counsel for the appellants. The objection has been argued in the respondents brief. Learned counsel for the appellants has however not filed a reply brief in this appeal.

It is the submission of learned counsel for the respondents that though grounds 1 and 3 of the grounds of appeal have been christened “Error in Law” they are in fact grounds of facts only or at best, of mixed law and fact and as such they require the leave of either the lower court or this court to be competent grounds of appeal, that appellants failed to obtain the requisite leave of court as a result of which the said grounds are incompetent and liable to be struck out, relying on Igwe vs Kalu (2002) 5 NWLR (pt. 761) 678 at 711; that the application of the appellants for leave filed on 19th April, 2004 was dismissed by this Court on the 23rd day of February, 2005; that issues 1 and 3 were formulated from the said incompetent grounds 1 and 3 and consequently liable to be struck out.

It is the further submission of learned Counsel for the respondents that issue 4 is equally incompetent the same having been formulated from an invalid ground of appeal, particularly as there are only three grounds of appeal herein as can be verified at page 124 of the record and that the said issue 4 is not formulated from any of the said three grounds of appeal; that the issue is consequently incompetent and liable to be struck out, relying on Alli vs Alesinloye (2000) 6 NWLR (pt. 669) 177 at 190.

As stated earlier in this judgment, the learned Counsel for the appellants, in his wisdom, failed/neglected to file a reply brief to the respondents brief in which he would have answered or reacted to the points raised in argument on the preliminary objection by virtue of which this Court would have benefited from his argument.

I have gone through pages 124 to 126 of the record of appeal and have confirmed that learned Counsel for the appellants filed only three grounds of appeal in the notice of appeal copied at these pages of the record.

From the issues formulated by learned Counsel for the appellants and earlier reproduced in this judgment, it is clear that a total of four (4) issues were formulated from the three grounds of appeal, a situation frowned upon by the law as it is settled law that though a counsel can formulate an issue out of a ground of appeal, he is not allowed to formulate two or more issues out of a ground of appeal and that where more than an issue is formulated out of a ground of appeal the issues are incompetent. It is known as the rule or principle against proliferation of issues in an appeal.