Naboth Okwuagbala & Ors V. Margaret Ikwueme & Ors (2003)

LawGlobal-Hub Lead Judgment Report

SULE AREMU OLAGUNJU, J.C.A.

The appellants are aggrieved by the order of consolidation made by the learned trial Judge, upon application of the respondents each of whom was a plaintiff in three separate actions before him and all of whom prayed that the three actions be consolidated and tried together. In each action, the plaintiff sued the 4 defendants, the appellants herein, for his or her unlawful arrest and detention by the police caused by the defendants, who jointly wrote a petition containing false allegations against the plaintiffs. On a motion filed jointly by the plaintiffs after pleadings had been exchanged in each of the three suits the learned trial Judge granted the prayer and ordered that the 3 suits be consolidated and tried together.

Dissatisfied with the order on behalf of the defendants, learned Counsel for the appellants filed 2 grounds of appeal with the notice of appeal and formulated from the grounds the following 2 issues for determination:
1. “Was the trial court right in consolidating the three suits merely because the defendants and causes of action are the same, although each of the plaintiffs sued in his/her personal capacity for the tort alleged committed exclusively and personally on him/her?”
2. “Whether the plaintiffs have the same interest in each other’s causes or matter.”

Learned Counsel for the respondents, who also formulated one issue for determination raised a preliminary objection to the 2nd ground of appeal and the 2nd issue distilled from the ground contending that the ground of appeal which alleged a misdirection in law does not furnish the particulars of misdirection relying on the proposition of law in the decision of this court in Bank of the North Ltd. v. Bello (2000) 7 NWLR (Pt. 664) 244, 253.

He argued in the alternative that none of the two issues proffered for determination is formulated from either of the two grounds of appeal and submitted that the 2nd ground of appeal is incompetent and so is the second issue distilled from it and urged this court to strike out the 2nd ground of appeal and the second issue formulated from it.

He relied on the Supreme Court’s decision in Alli v. Alesinloye (2000) 6 NWLR (Pt. 660) 177, 212; and on the decisions of this court in Aro v. Aro (2000) 3 NWLR (pt. 649) 443, 452; and Commissioner for Finance & Economic Development v. Ukpong (2000) 4 NWLR (pt. 653) 363, 377.

The appellants did not reply to the preliminary objection raised in the notice filed by the respondents on 27/1/2003 and argued in the respondents’ brief of argument as the appellants filed no reply brief nor was the point taken in oral argument at the hearing of the appeal, when learned Counsel for the appellants simply adopted the appellants’ brief of argument with nothing more. That being the case, the objection raised by the respondents to the competence of the 2nd ground of appeal as failure to furnish the particulars of misdirection alleged must be deemed to have been conceded by the appellants.

Equally conceded, is the objection that none of the two issues formulated for determination by the appellants is distilled from the second ground of appeal: see Okoye v. Nigerian Construction and Furniture Co. Ltd. (1991) 6 NWLR (Pt. 199) 501; 534; Popoola v. Adeyemo (1992) 8 NWLR (Pt. 257) 1, 32 and Akinrinmade v. Lawal (1996) 2 NWLR (Pt. 429) 218, 226.

Therefore, with the concession implied by the appellants’ default to reply to the preliminary objection to the competence of the 2nd ground of appeal and the issue distilled from the ground 1 strike out issue 2 in the appellants’ brief of argument and the 2nd ground of appeal from which the issue was formulated as incompetent. This follows from the proposition of the law by the Supreme Court, that an appellate court can only hear and decide on issues raised on the grounds of appeal filed before it, and an issue not covered by any of the grounds of appeal is incompetent and will be struck out: Alli v. Alesinloye supra, at page 212. See also Adeniyi v. Fabiyi (2000) 6 NWLR (Pt. 662) 532, 546, to the same effect.

Arguing the lone issue that is mixed up with issue two, almost inseparably, learned Counsel for the appellants recalled the purpose of consolidation of action taking his bearings from rule 2 of Order 15 of Anambra State High Court Rules, 1988, and stressing that a consolidation order is at the discretion of the court which ‘must be exercised judiciously and not capriciously’. He contended that the effective issue that is common to the 3 suits is the arrest of the 3 plaintiffs on 16/7/97, a factor that may render applicable the same law in resolving the dispute between the parties.

But he further contended that applying that common affinity to determine whether the 3 actions should be consolidated is undermined by the fact that each plaintiff is the subject of his or her action and, therefore, not the same as the other two plaintiffs. That apart, he agitated, the defence to the action of each plaintiff is different making it improper in law to consolidate the actions contending that where different defences are open to the defendants in each of the separate actions instituted by the plaintiff such actions cannot be consolidated supporting that proposition of the law by the decision of the English Court of Appeal in Daws v. Daily Sketch & Sunday Graphic Ltd. V. Same (1960) 1 All ER 397, 399.

He submitted that on the facts of this case as none of the plaintiffs has the same interest in the other’s cause the 3 actions are not amenable to being consolidated citing in support Attah v. Nnacho (1964) 1 All NLR 313, 316-317; and Iloabuchi v. Ebigbo (2000) 8 NWLR (Pt. 668) 197, 222. I take note of the fact that, the element of common interest is an argument of the incompetent issue 2 which must be disregarded whenever it forms part of the thread of argument on the lone surviving issue.

In any case, the learned Counsel further argued that the principle of joinder of parties is vital to the consideration of consolidation of action and referred to Amachree v. Newington (1952) 14 WACA 97, 99, in which three types of situation in which no order of joinder may be made are identified. He contended that the learned trial Judge wrongly applied the decisions in Delta Steel Co. Ltd. v. Owner of the Ship Aditya Prabha (1991) 3 NWLR (Pt. 179) 369 and Ifediorah v. Ume (1988) 2 NWLR (Pt.74) 5, 134, which the learned Counsel made frantic efforts to distinguish from the present case on facts.

He finally submitted that consolidating the 3 suits as the learned trial Judge did is inappropriate because the ‘subject-matters in the present appeal are different, and could not be an occasion for a cross action or joinder of any of the plaintiffs to the other’s suit, nor could third party proceeding inure in the suits on the facts and circumstances, nor could one of the suits be taken as a test cases’.