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’.
He urged this court to set aside the order of consolidation which he submitted is misconceived.
In his reply, learned Counsel for the respondents, began with agreement with the proposition of law by learned Counsel for the appellants, about the object of consolidation of actions and the factors inhibiting exercise of discretion that take their bearings from rule 2 of Order 15 of Anambra Sate High Court Rules, 1988, hereinafter called ‘the rules of the trial court’. But he contended that the provisions of that rule are not exhaustive and that account must also be taken of rule 1 thereof which contains guidelines about when an order of consolidation of ’causes and matters’ may be made with reference to the relationship of the parties to the causes or matters to be consolidated and enjoining as a prerequisite for making such an order ‘some common questions of law or fact’ relating to the actions to be consolidated. He referred to the recent decision of this court in Ume v. Ifediorah (2001) 8 NWLR (Pt. 714) 35, in which the rationale for consolidating actions was canvassed and the common questions of law or fact were expounded.
He joined issue with learned Counsel for the appellants on the question that the learned trial Judge was wrong in consolidating the 3 actions and insisted that the consolidation was proper and satisfied the requirement of the law. He dissected the respondents’ pleading in each of the 3 consolidated suits with particular reference to the arrest and detention by the police of each plaintiff on 16/7/97 at the instigation of the 4 appellants coupled with the unsuccessful protest to the police by each plaintiff of his or her innocence of the allegation; police investigation of the allegation and the result; that the 3 suits were before the same Judge where the 3 respondents were represented by the same counsel and the 4 appellants were also represented by the same counsel; that the application for consolidation by the 3 respondents was not challenged on facts by the appellants who filed no counter-affidavit.
The learned Counsel argued that those factors were considered by the learned trial Judge, who found no factors weighing against consolidation of the actions; he further contended that learned Counsel for the appellants, who opposed the application on the ground of embarrassment failed to show ‘how and to whom embarrassment could be caused’. The learned Counsel highlighted the finding by the learned trial Judge on common questions of law and fact on which he based the exercise of his discretion, which he submitted was properly exercised stressing that on the principle of law this court will not lightly interfere with such an exercise in support of which he cited Oyekanmi v. NEPA (2000) 15 NWLR (Pt. 690) 414, 438-439. The learned Counsel also emphasized the finding of fact by the learned trial Judge that ‘factor that weigh against consolidation are not existent’ which he argued is not the subject of this appeal.
He wondered how the appellants who filed no counter-affidavit can contest that they would be embarrassed by order of consolidation which is a question of fact. He also wondered on what basis can learned Counsel for the appellants, demonstrate that the exercise of discretion by the learned trial Judge was not in conformity with rule 2 of Order 15 of rules of the trial court, where there were no facts deposed to by the appellants to gainsay the facts deposed to by the respondents on which consolidation was based.
On the argument by the appellants that order of consolidation granted by the learned trial Judge offends against the test in Iloabachi v. Ebigbo, supra, at page 221, the learned Counsel submitted that the test is inapplicable to the actions on appeal as none of the 3 features that preclude the grant of order of consolidation is present. Finally, recounting for the purpose of emphasis, the fact that the 4 appellants set up the same defence against the case of each of the 3 respondents that has been shown to be similar to one another the learned Counsel submitted that the similarity renders the argument of learned Counsel for the appellants to be untenable. Therefore, he urged the court to dismiss the appeal.
The fulcrum of the arguments of the learned Counsel over whether the actions of the three respondents at the court below were wrongly consolidated by the learned trial Judge revolves around rules 1 and 2 of Order 15 of the Anambra State High Court Rules, 1988, which provide as follows:
“1. Causes and matters pending in the same judicial division may, by order of a Judge of the said division, be consolidated for the purpose of trial, whether or not in such causes or matters, the plaintiffs are the same and the defendants the same or the plaintiffs or the defendants are all different, provided there is some common questions of law or fact bearing sufficient importance in proportion to the rest of the subject-matter of the actions to render it desirable that all of them should be disposed of at the same time.
2. Consolidation of causes and matters is at the discretion of the Judge and may be refused where it may have the effect of complicating or prolonging the trial, or where for any reason the causes or matters cannot conveniently be tried together, or where circumstances exist which render the consolidation embarrassing to a party or to his legal practitioner.” (Italics mine)
A reading of rules 1 & 2 of Order 15 of the rules of the trial court reproduced above without the gloss of the case law shows that rule 1 empowers any Judge of a judicial division to order consolidation of causes and matters defined in Order 2 of the rules of the trial court pending in that judicial division for the purpose of trial. This he can do, whether the plaintiffs and the defendants are the same in both or all the actions or are different.
What is mandatory as prior condition for making an order is that, there must be some common questions of law or fact arising from the causes or matters to be consolidated. Rule 2 clarifies the exercise of the powers conferred by rule 1 which is declared to be discretionary and enumerated three situations in which an order of consolidation may be refused, viz, where (a) it may have the effect of complicating or prolonging the trial, (b) for any reason the causes or matters cannot conveniently be tried together or (c) circumstances exist which render the consolidation embarrassing to a party or to his legal practitioner.
Against the background of the foregoing rules, the attack by learned Counsel for the appellants of the order for consolidation made by the court below as earlier reviewed is mounted on three planks which I will consider in turn. Firstly, the submission that each plaintiff being the subject of his or her action which is not the same as the actions of the 2 other plaintiffs militates against having a common front that is a necessary condition for consolidating the three actions is woolly. I find the argument clumsy and almost unintelligible for in an action for unlawful arrest and detention such as the one before the trial court the subject of dispute is, in my view, the tort of unlawful arrest and detention that is being tried and not the complainant or victim of the tort who is the object of the wrong.
In any case, that limb of the argument does not address itself to the provision of rule 1 of Order 15 that clearly makes the position of the parties to the suits of no material consequence to consolidation once there are common questions of law or fact relating to the subject matter of the actions which are considered desirable to be tried together instances of which are given as where the same arguments are being proffered or where the same witness is required to prove certain ingredients of the claim in each of the separate actions sought to be consolidated: see Diab Nasr v. Complete Home Enterprises (Nig.) Ltd. (1977) 5 SC 1, 11; and Ume v. Ifediorah, supra, at page 43. In my view of this limb, there is no substance in the desultory argument of learned Counsel for the appellants which is a farrago of ill-conceived hypothesis.
Secondly, the argument of learned Counsel for the appellants that the defence of the respondent to each of the 3 separate actions is different and, therefore, a bar to consolidation of the 3 actions is negative by the appellants’ pleading to the claims of each respondent. Learned Counsel for the appellants did not particularize the appellants’ defence to each of the respondent’s claims and learned Counsel for the respondents who denied the claim in general terms only itemized the material parts of the respondents’ claims to show that they are substantially similar to one another with a view to underscoring the fact that such uniform claims could not have attracted different defences.
However, I have examined the statements of defence of the 4 appellants on pages 24-30, 31-37 & 38-44 of the record which are replies to the 1st, 2nd & 3rd respondents’ statements of claim on pages 11-14, 15-19 and 19-23 of the record, respectively. Paragraphs 9-10, 19 & 30-35 of the appellants’ statement of defence to the 1st respondent’s statement of claim compare with paragraphs 10-11, 21 & 32-39 of the appellants’ statement of defence to the 2nd respondent’s statement of claim. The two sets can be matched with paragraphs 10-11, 20 & 31-37 of the appellants’ statement of defence to the 3rd respondent’s statement of claim.
In those 3 parts of each statement of defence, the defendants joined issue with each plaintiff in the corresponding parts of the statement of claim on the same set of facts using almost the same words to account for the three episodes culminating in the allegation of the wrong by each plaintiff, namely, (a) the report made to the police in the defendants’ joint petition, (b) the incident leading to the petition and (c) the aftermath of the petition and the denial of responsibility for the arrest and detention of the plaintiffs.
The 3 statement of defence denied the respondents’ claims in a rote-like style that is mutually stereotyped and formulaic and gives the lie to the contention of learned counsel to the appellants that the defence to each respondent’s claims is different one from the other. This leg of the argument of learned Counsel for the appellants is submerged by the weight of its falsity and is utterly discredited.
The third limb of the argument is a compound of quibbles raked together in desperation to sand down the track by a competitor who is at the end of his tether. Thus, the contention that none of the 3 suits can stand as a counter-claim to the others nor can a third-party proceeding arise from any of the suits or can any of the suits be taken as a test-case, a thread of argument that is festooned with allegation of causing embarrassment to the appellants by the order of consolidation is one amalgam of misconceptions of the law on a test of the requisites for consolidation of actions. Indeed, the argument is a caricature of a combination of the principles enunciated in Attah v. Nnacho, supra, and Iloabuchi v. Ebigbo, supra, cited in support of the argument.
Therefore, I agree with the submission of learned Counsel for the respondents that, none of the four features wrapped up in the argument of learned Counsel for the appellants as inhibiting a grant of order of consolidation is manifested by the facts of any of the 3 consolidated suits. Indeed, in none of the 3 suits is the plaintiff in one action a defendant in another nor at any time in the history of the case was any of the respondents represented by a different counsel. The respondents being the plaintiffs in the 3 cases question of a third-party proceeding arising from the trial is irrelevant and the identity of the respondents’ claims as shown by the analysis of their pleadings by learned Counsel for the respondents stands out any of the 3 actions as a test case if that is necessary.
As I demonstrated earlier, the defences of the appellants are not different; therefore, question of the appellants being embarrassed by the consolidation of the action does not arise. On the whole, this limb of the argument by learned Counsel for the appellants is threadbare and barren, a classic instance of clutching at straws.
As against the fragile and shoddy relay of arguments by learned Counsel for the appellants, the analysis of the decision of the court below by learned Counsel for the respondents, demonstrated convincingly, that consolidation of the 3 suits meets the requisites for making such an order which, as laid down by the leading authorities on the matter and restated by the self-same decisions in Iloabuchi v. Ebigbo, supra, at page 222, is the satisfaction by the trial court in exercising its discretion that:
“(a) some common questions of law or facts arise in both or all the causes or matters; or
(b) the rights to relief are claimed in respect of or arise out of the same transaction or series of transactions; or
(d) for some other reason, it is desirable to make an order under the rule…”
The same principle has been echoed and applied to diverse situations on varied facts with elucidation of the ramifications of the principles in a number of cases, notably, Nwaeze v. Eze (1999) 3 NWLR (Pt. 595) 410, 416-417; Afoezioha v. Nwokoro (1999) 8 NWLR (Pt. 615) 393, 405; Bank of the North Ltd. v. Saleh (1999) 9 NWLR (Pt. 618) 331, 350-351; Korobotei v. Obubo (1999) 9 NWLR (Pt. 620) 655, 679, 690-691; Akpan v. Umoh (1999) 11 NWLR (Pt. 627) 349, 359-360 & 366 and Habib Nigeria Bank Ltd. v. Opomulero (2000) 15 NWLR (Pt. 690) 315, 333.
The application of the principles governing consolidation of causes and matters by the learned trial Judge adequately took into account the elements of the controlling rules of the court to part of which learned Counsel for the appellants turned a blind eye. In particular, the common questions of law and fact as the corner-stone of the exercise of discretion to grant a consolidating order enjoined by rule 1 of Order 15 of the rules of the trial court was conveniently glossed over by the learned Counsel.
Conversely, with an adroit grasp of what it takes to sift the wheat’s from the chaffs before exercising his discretion to grant the order for consolidation the learned trial Judge identified as fundamental the allegation of unlawful arrest and detention of each respondent as the foundation of his or her complaint and one which must be examined in each case and, therefore, an admixture of question of facts and law common to the three actions.
It is a question so basic to the inquiry in each of the three suits that can be better canvassed and resolved in one joint proceedings instead of taking the issue piece-meal in three separate proceedings.
Having regard to the need to minimize the outlay that may be required in proving and refuting the allegations, if the same process is to be repeated three times over and to save the court from avoidable drudgery there is an awful lot of merits that swing in favour of consolidating the three actions.
Thus, in contrast with the jejune posture of learned Counsel for the appellants who cannot see beyond the myopic self-interest of his clients the learned trial Judge not only examined those factors to show that the balance of convenience between the parties weighed heavily in favour of consolidating the actions, but he also demonstrated an acute appreciation of the nature of consolidation that it does not fuse the suits together as he reminded himself that he will still have to ‘deliver separate judgments to the plaintiffs whose claims are several’ quite in consonance with the epigram that summed up the nature of consolidation that ‘it does not create a set of inseparable siamese twins’ – per Ikongbeh, JCA, in Alaribe v. Nwankpa (1999) 4 NWLR (Pt. 600) 551, 560.
Therefore, contrary to the sneering insinuation by learned Counsel for the appellants that the learned trial Judge exercised his discretion capriciously, I am satisfied that the discretion to consolidate the three actions was, on the controlling principles, exercised judicially and judiciously. With the faltering steps taken by learned Counsel for the appellants about the alleged errors against the decision of the learned trial Judge, which he could not substantiate, I must resolve the lone issue in this appeal against the appellants.
Judging from the catalogue of errors evinced by the various point agitated on behalf of the appellants, this appeal is ill-advised as the direct antithesis of what the trial court had set out to achieve by consolidating the 3 suits with a view to saving time and costs.
Therefore, I find the ruling by Obidigwe, J., delivered on 16/7/99, consolidating the 3 suits by the respondents in this appeal to be correct, and I affirm that decision. There is no scintilla of merit in this appeal and I dismiss it as one forlorn litigious adventure of a kind. I award N5,000 costs against the appellants jointly and severally.
Appeal dismissed.
Other Citations: (2003)LCN/1405(CA)