JONATHAN ENIGWE & ORS VS KENNETH AKAIGWE
(1992) LCN/2490(SC)
In the Supreme Court of Nigeria
Friday, February 28, 1992
Case Number: SC. 153/1987
RATIO
INTERPRETATION OF STATUTE: INTERPRETATION OF ORDER II RULE 7 OF THE HIGH COURT RULES CAP.61 OF THE LAWS OF EASTERN NIGERIA,1963 AND SECTION 16 OF THE HIGH COURT LAW, CAP 61 OF THE LAWS OF EASTERN NIGERIA,1963 AS IT RELATES TO THE DIFFERENCE BETWEEN THE CONDITION IMPOSED BY THE RULES FOR CONSOLIDATION AND THAT UNDER THE ENGLISH RULES
“Now, in my opinion, the starting point in dealing with the issue should be the specific provisions of the High Court Rules, Cap.6 of the Laws of Eastern Nigeria, 1963. By Order II Rule 7 thereof – “Causes or matters pending in the same Court may by order of the Court be consolidated, and the Court shall give such directions as may be necessary with respect to the hearing of the causes or matters so consolidated.” It is very clear from these provisions that the only condition imposed by the Rule for the consolidation of actions is that the cases to be consolidated must be pending in the same court. Furthermore, by the Rule, it is discretionary for the court to grant application for consolidation. There is, therefore, a marked difference between the provisions of Order 11 Rule 7 of the High Court Rules, Cap. 61 and those of Order 4 Rule 10 of the Rules in England (see paragraph 4/10/1 of the 1979 White Book) which reads – “10. Where two or more causes or matters are pending in the same Division, then if it appears to the Court- (a) that some common question of law or fact arises in both or all of them, or (b) that the rights to reliefs claimed therein are in respect of or arise out of the same transaction or series of transactions, or (c) that for some other reason, it is desirable to make an order under this rule the Court may order those causes or matters to be consolidated on such terms as it thinks just or may order them to be tried at the same time or one immediately after another or may order any of them to be stayed until after the determination of any other of them.” It can now be seen that in interpreting the provisions of Order II Rule 7, extreme care must be taken to avoid interposing on the provisions the conditions laid down by the English Rules which are indeed alien to Order II Rule 7. In addition, the fetter under Section 16 of the High Court Law, Cap. 61 of the Laws of Eastern Nigeria, 1963 which reads – “16. The jurisdiction vested in the Court shall be exercised (as far as regards practice and procedure) in the manner provided by this Law and in any other written law or by such rules and orders of Court as may be made pursuant to this Law or any other written law, and, in default thereof, in substantial conformity with the law and practice for (sic) observed in England in the High Court of Justice, on the thirtieth of September, 1960.” and the decisions of this Court in Laibru Ltd. v. Building and Civil Engineering Contractors (1962) 1 All N.L.R. 387 (1962) 2 SCNLR 118 and Prince Adigun’s case (supra) at p.345, must be borne in mind also.”PER UWAIS, J.S.C
ACTION – CONSOLIDATION OF ACTION: INSTANCES WHEN CONSOLIDATION OF ACTIONS MAY BE ORDERED
“…In the light of the aforesaid, I am of the opinion that a consolidation of actions may be ordered either by consent of the parties or as a matter of expediency. If the judge before whom the cases are to be tried feels that costs and time will best be saved by hearing the cases together – see Obiekweife v. Unumma (1957) 2 FSC 70 at 71, (1957) SCNLR 331 and Diab Nasr v. Complete Home Enterprises (Nigeria) Ltd. (1977) 5 SC 1 at 11. In the present case, it was with the consent of the parties that the two actions were consolidated. Therefore, none of the parties can be heard to resile from the consolidation by arguing that it was wrongly or erroneously ordered, as learned counsel for the appellants has submitted- see Ojiegbe & Anor v Okwaranyia & Ors (1962) 1 All N.L.R. (Pt.4) 605 at p. 608.”PER UWAIS, J.S.C
JUDGMENT AND ORDER: ORDER OF NON-SUIT AND DISMISSAL:WHAT IS EXPECTED OF THE COURT WHEN CONSIDERING WHETHER TO GRANT AN ORDER FOR NON-SUIT OR FOR DISMISSAL
“As Bello, J.S.C. (now C.J.N.) observed in the case of African Continental Bank Ltd. v. Chief Festus Yesufu (1980) 1 SC 49 at 61 “in considering whether to grant a non-suit instead of a dismissal, the court has to weigh all the facts and circumstances of the case and see whether the scale of justice has tilted on the side of a non-suit or on the side of dismissal. In order words the court has to decide what is fair and just to the parties in the circumstance of the case.”PER AKPATA , J.S.C
ACTION – CONSOLIDATION OF ACTION:WETHER IS WAS PROPER FOR THE WESTERN AND MID-WESTERN STATES TO RESORT TO ENGLISH RULES ON THE ISSUES OF CONSOLIDATION
“It is pertinent to observe that the High Court Rules of erstwhile Western and Mid-Western Nigeria contained no provisions for consolidation of actions by order of Court but disjoinder of actions. It was legitimate, therefore, in cases coming from those States to have recourse to English Rules on the issue of consolidation.”PER UWAIS, J.S.C
JUSTICES:
MUHAMMADU LAWAL UWAIS JUSTICE, SUPREME COURT
SAIDU KAWU JUSTICE, SUPREME COURT
PHILIP NNAEMEKA-AGU JUSTICE, SUPREME COURT
ABUBAKAR BASHIR WALI JUSTICE, SUPREME COURT
EPHRAIM AMBROSE IBUKUN AKPATA JUSTICE, SUPREME COURT.
BETWEEN
APPELLANTS
1. JONATHAN ENIGWE
2. GODFREY UDOKA
3. STEPHEN OYUDO
4. MOLOKWU ENIGWE
5. OYEKWELU AZIAGHAMICHAEL AKAIGWE (For himself and representing members of Akaigwe family) AND
1. MOLOKWU ENIGWE
2. GODFREY UDOKA (For themselves and on behalf of the members of Ezuka sub-family of Umueze family of Alor)
AND
RESPONDENTS
KENNETH AKIGWE
MICHAEL AKIGWEA
MOS AKIGWE
CHINWA AKIGWE
AUGUSTINE AKIGWE
ERIC IFEKA
L. UWAIS, J.S.C (Delivering the Leading Judgment): Two actions were filed in the High Court of Onitsha as suits Nos.0/18/71 and 0/133/71 by the parties in this appeal. In suit No. 0/18/71 Michael Akaigwe on behalf of himself and the members of Akaigwe family sued Jonathan Enigwe and 7 others in their personal capacities, claiming declaration of title to a piece of land called “Okpuno Maduabuchi”, N200.00 damages for trespass and a perpetual injunction restraining the defendants, their servants and or agents from further trespass to the land in question as shown in a survey plan No.SE/EC/27/71. In suit No.0/133/71 Molokwu Enigwe and Godfrey Udoka for themselves and on behalf of the members of Ezuka sub-family of Umueze family of Alor sued Kenneth Akigwe and 5 others personally, claiming against them declaration of title to a piece of land called “Eziama Ogbuka Eneluwa” shown in survey plan No.EC/165/71; N200.00 damages for trespass; forfeiture and perpetual injunction.
After pleadings were filed in each case, suit No.9/18/71 came up on the 3rd day of May, 1972. Mr. Anah appeared for the plaintiffs and Mr. Obianyo for the defendants. The latter stated that the fanner had written him agreeing that suit No.0/133/71 be consolidated with suit No.0/18/71. Thereupon Egbuna J, declared the suits consolidated as earlier agreed by counsel to the parties. Hearing of evidence began on the 18th day of September, 1980 before F.O. Nwokedi, J., who found that although the parties called the land in dispute different names, the land was one and the same in the dispute.
The plaintiffs case is that the land in dispute was possessed by their father Akigwe Metu, as owner, from time immemorial and that they inherited it from him. The plaintiffs contended that the defendants who originally descended from a woman who begat their (defendants’) ancestor through illicit association with an unknown man could not by Alor native law arid custom possibly own any land in Alor. The plaintiffs alleged that the defendants were known as “Umunwayim” due to their dubious paternity and origin. The word “Umunwayim” literally means children of a woman without a known father. The plaintiffs claimed that the portions of the land in dispute occupied by the relations of the defendants were granted to the former by the plaintiffs’ father. One of such relations was called Maduabuchi. Another relation of the defendants who was a brother of Maduabuchi called Okeke Enyi was similarly granted a portion of the land in dispute to live on. The conditions for both grants was that if both grantees died without surviving male issues, the land would revert to the plaintiffs’ family. Maduabuchi died leaving a son called Ikediobi who predeceased his uncle – Okeke Enyi – without any issue, Okeke Enyi later died also without any male child. Consequently, the land in dispute reverted to the plaintiffs’ family.
The plaintiffs claimed that they had since remained in possession of the land in dispute and that the defendants did not disturb them. In addition, portions of the land in dispute had at various times been granted to other people by the plaintiffs on payment of tribute to the plaintiffs’ family. It was in 1968 that the defendants invaded the land in dispute and reaped economic fruits and claimed the land as theirs (defendants). The claim was resisted by the plaintiffs who made report to Nnewi Police. Members of the defendants’ family were arrested by the police and prosecuted for stealing and were convicted by the Magistrate’s Court, though they were released on appeal to the High Court. In 1969, the dispute between the plaintiffs and the defendants was referred to the tribunal of Umunambu Village by the then Civil Defence Committee. Both the plaintiffs and the defendants were represented by their members before the tribunal. Witnesses gave evidence before the tribunal which inspected the land in dispute. The tribunal gave its verdict in favour of the plaintiffs.
The defendants’ case is that the land in dispute was originally the family land of Umu Ezuka, which is bounded in the north by the compound of Michael Akaigwe (1st plaintiff) which is located on a piece of land granted to Metu (who was the grandfather of the 1st plaintiff) by Ohazume who was a member of the defendants’ family. Emeluwa inherited the land in dispute from his father Egbuke. Emeluwa had two sons, namely, Maduabuchi and Okeke Enyi. On his death the sons inherited his land. Later both Maduabuchi and Okeke Enyi died without surviving sons and their lands devolved on Ikejiofor, Ejikwalu and Obazulume who were brothers of Emeluwa. The defendants are the descendants of Ikejiofor. The portion of land now occupied by the plaintiffs was in fact granted to Metu’s wife by the defendants ancestor for the purpose of farming. Metu was the grandfather of the defendants. In 1969, the Civil Defence Unit in the defendants’ area referred their dispute with the plaintiffs to the meeting of Umunambu Village for settlement but the meeting did not take place because of a dispute over the choice of a chairman to preside over the meeting. As a result the defendants walked out of the proposed meeting and the settlement did not occur.
After addressed by counsel to the parties and a visit to locus in quo, the learned trial judge found for the plaintiffs by accepting their traditional evidence and holding that there was a meeting of the Umunambu Village in which the defendants participated and that the arbitration at the meeting went in favour of the plaintiffs against the defendants. Judgment was, therefore, entered for the plaintiffs, by the learned trial judge, in the following terms –
“On the whole, I prefer the story of the plaintiffs to that of the defendants as to the origin of the land in dispute. In view of the foregoing, I hold that the plaintiffs have proved their case. There will therefore be judgment for the plaintiffs in respect of Suit No. 0/18/71. The plaintiff’s cross-action in (Suit No.0/133/71) is hereby dismissed.”
The defendants, being aggrieved by the decision, appealed to the Court of Appeal complaining inter alia that the visit to locus in quo took place after final addresses by the parties and after judgment had been reserved by the trial judge. It was also canvassed that the trial court was wrong in holding that the settlement by the meeting of Umunambu Village was binding on the parties.
In dismissing the appeal the Court of Appeal (Coram: Aseme, Aikawa and Sulu-Gambari, J.J.C.A.) held, per Aseme, J.C.A., first that what happened at the locus in quo did not occasion miscarriage of justice so as to disparage the judgment of F.G. Nwokedi, J. Secondly, that the settlement award made by the meeting of Umunambu Village was not illegal by reason of the fact that the dispute by the parties was referred to the Umunamba Village meeting by the Civil Defence Committee which existed in Biafra at the time of the Nigerian Civil War.
It is against that decision that the appellants brought the appeal in this Court raising the following questions for determination –
“(i) Whether the judgment of the High Court given as it was in matters which were improperly consolidated for trial ought to have been upheld by the court below.
(ii) Whether, in the absence of an application by either party to visit the locus in quo the trial, judge is entitled to decide to make such visit.
(iii) If the answer to Question (ii) is in the negative what is the effect of the decision by the trial judge to visit the locus in quo. suo motu.
(iv) Whether the Court of Appeal ought to have upheld the complaints of the appellants on the issue of the alleged findings or award of the arbitration,”
The respondents accepted the issues for determination as formulated by the appellants. Canvassing the first question, Chief Williams, learned Senior Advocate, for the appellants, accepted the accuracy of the statement by Aseme, J.C.A. on consolidation of the parties actions to the effect –
“…..the learned Judge consolidated the two suits without considering the prerequisites of an order for consolidation. In practice where it is apparent from the pleadings that the primary issues involved are between the two plaintiffs consolidation cannot be ordered. ”
The submission is based on the provisions of paragraph 4/9/1 of the 1988 Edition of the White Book, where it is stated that –
“Two actions cannot be consolidated where the plaintiff in one action is the same person as the defendant in another action, unless one action can be ordered to stand as a counter-claim or third party proceedings in another action.”
Consequently, it was contended that the order for consolidation of the two actions for trial was improper and ought not to have been made. It was then submitted that the error in consolidating the actions had vitiated the trial.
In reply, Mr. Anyamene, learned Senior Advocate, for the respondents, submitted that the quotation from paragraph 4/9/1 of the White Book was taken out of con. He referred to the statement from which the quotation was extracted, which reads in full as follows –
“The main purpose of consolidation is to save costs and time, and therefore it will not usually be ordered unless there is some common question of law or fact bearing sufficient importance in proportion to the rest of the subject matter of the actions” to render it desirable that the whole should be disposed of at the same time. Where this, is the case, action may he consolidated where the plaintiffs are the same and the defendants are the same or where the plaintiffs or defendants or all are different.
There may, however, be further circumstances which will militate against an order being made…. Two actions cannot be consolidated where the plaintiff in one action is the same person as the defendant in another action…………..
Mr. Anyamene referred further to Order 11 rule 7 of the High Court Rules, Cap. 61 of the Laws of Eastern Nigeria, 1963 applicable to the case and submitted, relying on the decision in Prince Adigun & Ors. v. A.-G. of Oyo State & Ors.,” (1987) 2 NWLR (Pt.56) 197, (1987) 4 S.C 272 at 345, that where our Rules of Practice cover a given situation it is not necessary to have recourse to English rules of practice.
Now, in my opinion, the starting point in dealing with the issue should be the specific provisions of the High Court Rules, Cap.6 of the Laws of Eastern Nigeria, 1963. By Order II rule 7 thereof –
“Causes or matters pending in the same Court may by order of the Court be consolidated, and the Court shall give such directions as may be necessary with respect to the hearing of the causes or matters so consolidated:’
It is very clear from these provisions that the only condition imposed by the Rule for the consolidation of actions is that the cases to be consolidated must be pending in the same court. Furthermore, by the Rule, it is discretionary for the court to grant application for consolidation. There is, therefore, a marked, difference between the provisions of Order 11 rule 7 of the High Court Rules, Cap. 61 and those of Order 4 rule 10 of the Rules in England (see paragraph 4/10/1 of the 1979 White Book) which reads –
“10. Where two or more causes or matters are pending in the same Division, then if it appears to the Court-
(a) that some common question of law or fact arises in both or all of them, or
(b) that the rights to reliefs claimed therein are in respect of or arise out of the same transaction or series of transactions, or
(c) that for some other reason it is desirable to make an order under this rule the Court may order those causes or matters to be consolidated on such terms as it thinks just or may order them to be tried at the same time or one immediately after another or may order any of them to be stayed until after the determination of any other of them,”
It can now be seen that in interpreting the provisions of Order II rule 7 extreme care must be taken to avoid interposing on the provisions the conditions laid down by the English Rules which are indeed alien to Order II rule 7. In addition, the fetter under section 16 of the High Court Law, Cap. 61 of the Laws of Eastern Nigeria, 1963 which reads –
“16. The jurisdiction vested in the Court shall be exercised (as far as regards practice and procedure) in the manner provided by this Law and in any other written law or by such rules and orders of Court as may be made pursuant to this Law or any other written law, and, in default thereof: in substantial conformity with the law and practice for (sic) observed in England in the High Court of Justice, on the thirtieth of September, 1960.”
and the decisions of this Court in Laibru Ltd. v. Building and Civil Engineering Contractors (1962) 1 All N.L.R. 387 (1962) 2 SCNLR 118 and Prince Adigun’s case (supra) at p.345, must be borne in mind also.
It is pertinent to observe that the High Court Rules of erstwhile Western and Mid-Western Nigeria contained no provisions for consolidation of actions by order of Court but disjoinder of actions. It was legitimate, therefore, in cases coming from those States to have recourse to English Rules on the issue of consolidation.
In the light of the aforesaid, I am of the opinion that a consolidation of actions may be ordered either by consent of the parties or as a matter of expediency. If the judge before whom the cases are to be tried feels that costs and time will best be saved by hearing the cases together – see Obiekweife v Unumma, (1957) 2 F.S.C. 70 at 71, (1957) SCNLR 331 and Diab Nasr v. Complete Home Enterprises (Nigeria) Ltd., (1977) 5 S.C. 1 at 11. In the present case it was with the consent of the parties that the two actions were consolidated. Therefore, none of the parties can be heard to resile from the consolidation by arguing that it was wrongly or erroneously ordered, as learned counsel for the appellants has submitted – see Ojiegbe & Anor. v Okwaranyia & Ors., (1962) 1 All N.L.R. (Pt. 4) 605 at p. 608.
On question for determination No. (iv) the appellants complaint is that there was no voluntary submission by the parties to the arbitration conducted by the community of Umunambu Village. To support the contention, the appellants’ brief of argument referred to the testimonies of Felix Udeze (P.W.2) and Benson Onyebuchi (P.W.3) who said that it was the Civil Defence Committee that referred the dispute to the Village Meeting for settlement. It was, therefore, argued that both the trial Court and the Court of Appeal erred when they held the award or the decision in the arbitration was binding on the parties in the dispute.
In reply, the respondents argued in their brief of argument that it was not the case of the appellants in either the High Court or the Court of Appeal that they did not submit to arbitration whatsoever, but that there was an arbitration and they walked out of the arbitration. It is then submitted on the authority of Kwasi & Ors. v. Larbe, (1951) 13 W.A.C.A. 76, that walking out of an arbitration by a party does not prevent an award to be made by the tribunal. And where such award is made it is binding on the party that walked out. Attention is then called to exhibit K, which is a letter which was written by Mr. G.N. Udoka, an Inspector of Police, to the Umunambu Village meeting protesting to the meeting about a fine imposed on him by the former, and referring to two previous occasions when the meeting fixed but postponed its delivery of verdict. As Mr. G.N. Udoka is a member of the appellants family, it was argued that that fact established that the appellants’ had voluntarily submitted to the arbitration.
I agree with the point made by the respondents that it was not the appellants’ complaint in the lower courts that they did not submit to arbitration but rather that after submitting to the arbitration they walked out of it before the verdict was given.
The lower courts, in fact, found that there was submission to the arbitration by the appellants and that they did not walk out of it. These are findings of fact and as they were concurrently made, it is now settled that this Court will not interfere unless exceptional circumstances are shown for us to do so. However, no such circumstances have been shown here by the appellants. Moreover, the argument that there was no submission by them to the arbitration is a new point, for which no leave of this Court had been obtained to argue it. It should, therefore, be discountenanced. In any case, the concurrent findings of the lower courts are that the appellants did participate in the arbitration.
Finally, the appellants contend that the trial judge decided suo motu to visit the locus in quo after the parties had concluded their addresses. Relying on the provisions of section 76 of the Evidence Act, Cap.62 of the Laws of Nigeria, 1958, it is submitted by the appellants that a view or inspection of locus in quo is part of the evidence in a case. It is then argued that only the parties to a case can call for the view or inspection and that the court cannot decided on its own to make the inspection. The cases of Seismograph Services (Nig.) Ltd. v. Ogbeni, (1976) 4 S.C. 85 (1976)1 N.M.L.R. I98atp.215 line 13 to p.219 line 9 per Obaseki, J.S.C.,Goold v. Evans, Co.(1951) 2 T.L.R. 1189 per Denning L.J. (as he then was) and Tito v Waddell (1975) 1 W.L.R. 1303 per Mcgarry, J. (as he then was), and In re Enoch & Zarethsky, Bock & Co’s Arbitration (1910) 1 K.B. 327, have been cited. It is further contended that a judge has no power suo motu to call a witness or tender any evidence at all in a case that is before him. It is then submitted that the evidence on the locus in quo was recorded and submitted that it could hardly be regarded as a record of proceedings since there was no indication in the record as to who called the witnesses at the locus in quo which the learned trial judge took into consideration was for that reason inadmissible. The appellants also attacked the manner in which what happened at the locus in quo or why they were called. Furthermore, the parties had not been given the opportunity of hearing the additional evidence through the witnesses nor were they given the opportunity to cross-examine them and comment on the visit as laid down in the case of Seismograph Service Ltd. v. Onokposa, (1972) 1 All N.L.R. (Pt.!) 343 at 352 per Sowemimo, J.S.C. (as he then was).
The respondents contend in their brief of argument that the appellants did not, in the Court of Appeal, raise the point that the trial judge by visiting the locus in quo without application by either party erred in law. The point is, therefore, new and no leave of this Court had been obtained to argue it.
This contention was replied to in the reply brief jointly filed by Chief Williams, SAN and Chief Onyiuike, SAN on behalf of the appellants. They referred to ground of appeal 2 (a) in the Court of Appeal and issue No.(b) (i) which was formulated in that Court in support of the ground of appeal as well as the oral argument canvassed on behalf of the appellants. I am satisfied that the point arose at the Court of Appeal and is not, therefore, a new point to call for our leave before it could be argued.
In further reply, the respondents argue that it is not correct to say, as contended by the appellants, that except on the application of a party a trial court cannot suo motu visit a locus in quo since there is nothing in section 76 (ii) of the Evidence Act, Cap. 62 to support that proposition. Nor is it correct to say that a trial judge cannot make a visit to locus in quo after final addresses because that was what happened in Arutu v. The Queen (1959) SCNLR 1574 F.S.C 66 and Nwizuk & Ors. v. Eneyok & Ors. (1953) 14 W.A.C.A. 354 and was approved by the Federal Supreme Court and the West African Court of Appeal, respectively. With regard to the conduct of a visit to locus in quo, the respondents submitted that the locus classicus as stated in the case of Ojiegbe & Ors. v. Okwaranyia & Ors. (supra) at 608 is the judgment of the West African Court of Appeal in Nwizuk & Ors. (supra). It is further argued that in the present case the correct procedure at the scene of the locus in quo had been followed as shown in the judgment of the trial court. Attention was then drawn that the appellants made the following statement in the Court of Appeal on the visit to the locus in quo –
“There was nothing in the visit to the locus in quo that could have improved the case of the respondents; on the contrary, the visit to the locus in quo supported the case of the appellants.”
It was then submitted that the appellants cannot reprobate before us on that statement, by attacking the conduct or matter of the visit, since that is the attitude which had been deprecated by this Court in the case of Ojiegbe & Ors. v.Okwaranyia & Ors., (supra). Finally, the respondents submitted that the present case is distinguishable from the case of Seismograph Services (Nig.) Ltd. v. Onokposa, (1972) 1 All N.L.R. (Pt.1) 343 where the trial judge substituted the evidence adduced with his view at the locus in quo contrary to what happened in the present case.
Now, what actually took place in the present case was that on the 20th day of July, 1982, the final addresses were concluded and the learned trial judge reserved judgment. The record of proceedings shows next that the Court held at Alor instead of Onitsha, and its record was headed – “Locus Report in Re – 0/18 & 133/71; Akigwe & Ors. v. Enigwe & Ors.” The plaintiff testified and was cross-examined by counsel for the defendants. Next, P.W.2 Felix Udeze testified but was not cross-examined. A defendant (no name mentioned) testified and he was cross-examined by the plaintiffs’ counsel. Another witness, simply called Udoka, finally testified but was not cross-examined. The record was then dated 19th October, 1982. It is significant that it was not signed by the trial judge.
The High Court resumed on the 20th day of October, 1982 but it is not clear at where, since the record heading was merely marked – “Resumed on Wednesday, the 20th day of October, 1982.” The following minute then appears: –
“COURT: On Monday the 18th of October, 1982 the Court visited the locus in quo at Alor in Idemili Division and their inspection of the land in dispute in the presence of the parties and their Counsel made certain observations which were recorded by the clerk of court. Evidence was taken there and Counsel for both parties were given opportunity to lead evidence and cross-examine the principal witnesses. What transpired at the locus in quo was read in the open Court on the following Wednesday and both parties and Counsel confirm the correctness of the proceedings.
COURT: Judgment was reserved to the 9th of November, 1982.
In dealing with the foregoing submission, I think it is necessary to state the general principles of visit to or inspection of a locus in quo. These are –
1. There is no rule of law which determines at what stage in a trial a visit of inspection must be made – see Ejidike & Ors. v. Obiora, (1951) 13 W.A.C.A. 270 at 273.
2. A Court should undertake a visit to the locus-in-quo where such a visit will clear a doubt as to the accuracy of a piece of evidence when such evidence is in conflict with another evidence – see Seismograph Services (Nig.) Ltd. v. Ogheni, (supra).
3. Where there are two conflicting evidence adduced by parties to a case, it is necessary to visit the locus in quo if such a visit can resolve the conflict in the evidence – see Seismograph Service (Nig.) Ltd. v. Akporovo, (1974) 6 S.C 119 at 128.
4. Where a trial judge makes a visit to locus-in- quo it is not proper for him to treat his perception at the scene as a finding of fact without evidence of such perception being given by a witness either at the locus or later in court after the inspection – see Seismograph Service Ltd. v. Onokpasa (supra).
5. On a visit to a locus-in-quo it is necessary for the trial judge to make a record in the course of the proceedings of what transpires at the scene. However, if the trial judge failed to make the record but made statement in his judgment about the visit, such statement would be taken as accurate account of what happened and therefore final, unless of course the contrary can be established by the party that impugns the record – see Nwizuk’ s case (supra) and Maji v Shafi, (1965) N.M.L.R, 33 at 35 and Bello v. Kassim. 1969 1 N.M.L.R, 148.
6. Where a visit is made to a locus-inquo evidence of witnesses can be received at the scene or in Court later. But the parties, in that case, must be given the opportunity of hearing the evidence of the witnesses and where necessary be offered the opportunity of cross-examining the witnesses and commenting on the evidence – see Seismograph Service Ltd. v. Onakpasa, (supra) at pp. 134-135.
In addition, I think it is pertinent to refer to my observation in Chukwuogor v. Obuara, (1987) 3 N.W.L.R. (Pt. 61) 454 at 473, wherein I said-
“his clear from the parts italicised above that the Evidence Act laid down two procedures for visit to a locus in quo. That is the court may adjourn to the locus and continue sitting there in the normal way by hearing and taking evidence of witnesses or it may just move to the locus to inspect the subject-matter of dispute and return to the court room for evidence of the inspection to be adduced. From the reference made by the learned trial judge in his judgment it seems that the second procedure was half-heartedly followed by him. The record merely reads –
“In the presence of the parties and their counsel. I visited the road in dispute. The road was correctly described as track by the higher technical officer, for my inspection clearly showed that it is a road through which the defendant has access from his compound to the Awka-Onitsha main road…………….”
Ambrose Ezeani, D.W. 4 was the Higher Technical Officer who had, earlier testified before the inspection. The above quotation does not show that evidence of the inspection was given in court. This may not be fatal to the proceedings in view of the decision of this Court in Musa Maji v. Mallam Shewu Shafi, (1965) N.M.L.R. 33 at 34 and the decision of the West African Court of Appeal in Chief Aaron Nwizuk & Ors. v. Chief Warribo Eneyok & Ors., (1953) 14 W.A.C.A. 354.
In Ejidike & Ors. v. Obiora, (1957) 13 W.A.C.A 270; Mwizuk & Ors.’ case (supra) and Adeleke Arutu v. R. (1957) SCNLR 4 F.S.C, 77 visits to locus in quo were carried out after judgment had been reserved (as was done in the present case). The visits were not considered void but as part of the proceedings at the trial, so that the proceedings did not actually terminate with the addresses of counsel which were taken on the 9th of April, 1981. If, therefore, counsel had wanted to address the court thereafter, they would have been entitled to do so. And that would have been the “final addresses” before judgment was delivered, As it were, there were no final addresses after the inspection which was as integral part of the procedure for adducing evidence.”
What is striking, and indeed startling, in the present case is the following remark made by the learned trial judge
“At the close of evidence, learned counsel for both parties addressed the court extensively. After considering the evidence canvassed by both sides, I had very little to choose between the evidence of both sides. I thereof, decided to pay a visit to the locus in quo to see things for myself…” (Italics mine).
First of all it is difficult to say that the proceedings at the locus in quo as recorded above conform with the general principles enunciated earlier. Some of the witnesses were not cross-examined and there is no explanation on the face of the record as to why they were not cross-examined. The questions that arise are; were the parties given the opportunity to cross-examine the witnesses and they declined to do so Or were the parties denied that right There are no answers to these vital questions. Secondly, there were no addresses by the parties on the additional evidence adduced at the locus-in-quo. With that state of the record of proceedings, it is not possible to say if the parties were given the opportunity to do so, by the trial judge, before he proceeded to deliver his judgment. This, I think, offends the principles of fair trial.
Of greater importance though is the reason given by the learned trial judge for undertaking the visit to the scene. It is significant that it was none of the parties, as is usually the practice that invited him to inspect the scene. At the stage when the learned trial judge decided that he had “little to choose between the evidence of the parties” he should have either dismissed their claims or non-suited them, as the case may be, but this did not happen. Instead he proceeded to rely on the evidence adduced at the locus in quo and what he also personally observed thereat to give judgment for the respondents in their case against the appellants and dismissed the claim of the appellants as plaintiffs in the cross-action. In this respect, the present case appears, as submitted by the appellants, to be on all fours with the case of Seismograph Service Ltd v. Onokposa (supra) at 131 or (1972) N.S.C.C. 231 at 235 where this Court, Per Sowemimo, J.S.C. (as he then was) made the following remarks –
“We consider it pertinent at this stage to refer this portion of the judgment where the learned trial judge stated thus –
“During the period of adjournment (for judgment after the addresses of Counsel) having perused the entire proceeding in the course of wanting to write the judgment, I found that in view of the expert evidence adduced by either side as to the cause of the cracks in the walls of Plaintiff’s buildings and the evidence as to the value, it was necessary for me to visit the College premises to inspect the buildings in order to find out which side was speaking the truth.”
The Counsel for the appellant contended, and quite rightly in our view, that it must be accepted, that the learned trial judge had impliedly found that on the completed evidence before him the Plaintiff had not established the liability of the Defendant. At the stage the learned trial judge should have dismissed the Plaintiffs’ claim.”
In the present case the remark made by the learned trial judge at the end of the final addresses was that he had “little to choose between the evidence of both sides”. This statement is not tantamount to final rejection of the parties’ cases. It seems to me to imply that the case of one party was more cogent than that of the others, but that the cogency was not preponderant enough to justify the grant of the claims on the balance of probabilities. To which of the parties that specifically applies, I cannot say. Consequently, it is impossible for this Court to determine on which side the scale of justice should tilt. Accordingly, the order to be made in the circumstances is, in my opinion that of non-suit as urged by the appellants, so that the consolidated actions may be heard de novo. I am not unaware of the fact that the actions in this appeal were instituted about 22 years ago and in the interest of all concerned, the cases should have been disposed of long before now. However, the order which I intend to make is the only one available to this Court for the reasons already aforementioned.
In the result, the appeal succeeds and it is hereby granted. The decisions of both the High Court and the Court of Appeal are hereby set aside. In their place I non-suit the plaintiffs in each of the 2 cases which constitute the consolidated action. Costs assessed at N1,000.00 are awarded in favour of the Appellants against the Respondents.
S. KAWU, J.S.C.: I have had the advantage of reading, in draft, the lead judgment of my learned brother, Uwais, J.S.C. which has just been delivered. I am in complete agreement with his reasoning and his conclusions. For the reasons fully set out in the said judgment, I too will allow the appeal and set aside the decisions of the two lower courts. I also non-suit the plaintiffs in each of the two cases consolidated. I award N1,000.00 costs in favour of the appellants and against the Respondents.
P. NNAEMEKA-AGU, J.S.C.: This is a further appeal by the defendants in an Onitsha High Court Suit No. 0/18/71 against the dismissal of their appeal in two consolidated suits (0/18/71 and 0/133/71) by the Court of Appeal. Enugu Division.
In the first suit (0/18/71) Michael Akaigwe brought an action as a representative of the members of Akaigwe Family of Alor, in Idemili Local Government of Anambra State against eight persons from Umueze Family of Alor, sued in their personal capacities. The claim was for a declaration of title to a piece or parcel of land called “Okpuno Maduabuchi” said to be situate at Umunambu Village, Alor,100.00 damages for trespass and perpetual injunction. In the second suit (0/122/71) Molokwu Enigwe and Godfrey Udoka brought an action for themselves and on behalf of Ezuka sub family of Umueze, Alar, against the named plaintiff in suit No. 0/18/71 and five other persons. Five of the defendants were said to be from Ebenato family and the sixth from Idenu quarter of Alor. They were all sued in their personal capacities over a piece of parcel of land called “Eziama Ogbuka Eneluwa alias Maduabuchi” situate at Alor. The claim was for a declaration of title. 100.00 damages for trespass, forfeiture of a portion of the’91 land marked X on plaintiffs’ plan (9C.165/71) and perpetual injunction. The two suits were consolidated for hearing by consent of counsel on both sides. The learned Judge o created the two suits as cross actions.
After final addresses on 20/782 the learned trial Judge adjourned the case sine die for judgment. It is not shown from the record that any of the parties applied for the judge to visit the locus in quo. However, on 18/10/82, that is two days before the expiration of the constitutional period of three months for the court to deliver its judgment, the learned trial judge suo motu, as it appears, decided to visit the locus. He made extensive use of the impressions he formed at the visit to the locus in his subsequent judgment. I may mention at this stage that learned trial judge himself recorded his reason for deciding to visit the locus thus:
“At the close of evidence, learned counsel for both parties addressed the court extensively. After considering the evidence canvassed by both sides, I had very little to choose between the evidence of both sides. I therefore decided to pay a visit to the locus in quo and see things for myself ….. ”
I shall examine the true significance of this statement in due course.
Suffice it to say at this stage that at the end of the hearing, the learned Judge entered judgment for the plaintiff in 0/18/71.
The Court of Appeal dismissed the appeal; hence this further appeal. Parties have exchanged their briefs.
Four issues for determination have been formulated by the learned Senior Advocate for the appellants, Chief Williams, and accepted by the learned Senior Advocate for the respondents, Mr. Anyamene. They have been set out and dealt with in the lead judgment of my learned brother, Uwais, J.S.C. But I wish to limit my comments to the issues of –
(i) consolidation, and
(ii) visit to the locus in quo
Now the visit to the locus in quo and the manner the Judge used it in his judgment have been attacked on many grounds. Before I examine those grounds, I may observe that a visit to the locus in quo in a civil case is part of the proceedings in the case. The powers to make such a visit and the procedure to be adopted have been laid down by section 76 of the Evidence Act. It is enough to set out the second proviso to that section. It states
“(ii) If oral evidence refers to the existence or condition of any material thing other than a document, the court may, if it thinks fit, require the production of such material thing for its inspection, or may inspect or may order or permit a jury to inspect any movable or immovable property, the inspection of which may be material to the proper determination of the question in dispute. In the case of such inspection being ordered or permitted, the court shall either be adjourned to the place where the subject-matter of the said inspection may be and the proceedings shall continue at that place until the court further adjourns back to its original place of sitting or to some other place of sitting, or the court shall attend and make an inspection of the subject-matter only, evidence, if any, of what transpired there being given in court afterwards. In either case the accused, if any, shall be present.”
It appears clear to me that the law contemplates that this is a part of the proceedings of court whereby it could resolve evidence in conflict. See Seismograph Services (Nig.) Limited v. Ogbeni (1976) 1 All N.L.R. 198,215 – 219. See also; Karamat v. The Queen (1956) A.C. 256. But it is intended that the court should either be adjourned to the locus to continue its proceedings there until it resumes in the court or it shall attend the locus and there make an inspection of the subject matter only so that evidence of what transpired at the locus could then be given in court afterwards. Therefore our law is the same with the position at common law. See: Goold v. Evans (1951) 2 T.L.R. 1189; also Tito v. Waddell (1975) 3 All E.R. 997, (1975) 1 NLR 1303.
In the instant case the Judge decided suo motu to visit the locus after completion of all the evidence and addresses of counsel and adjourning for judgment. As if to underscore the fact that the visit was not a part of the proceedings of court, the record of what transpired at the locus was kept not by himself but by the clerk of court. It is not even clear whether the case which had been closed was reopened; nor whether the parties and their counsel were issued with hearing notices; nor who were present at the locus on 18/10/82 apart from plaintiff (unnamed), Agbala, Udeze, defendant (unnamed) and Onyekwelu who were recorded to have made statements or asked questions. And the record was not signed by the learned Judge. In an obvious attempt to give credibility to the record of that day of inspection, two days later, the Judge recorded that the proceeding on the day of inspection were on 20/10/82 read out in open court and both counsel and parties confirmed the record as correct. Strikingly again it is not shown from the record which parties or counsel were present on that day (20/10/82) or who confirmed what.
Arising from the above provisions of section 76 of the Evidence Act the first contention of the Learned Senior Advocate for the appellant on the issue is that going to the locus is part of the evidence at the trial. So, because a court cannot suo motu get up evidence in a civil case, it cannot suo motu decide to make an inspection of the locus. It ought to have been only on the application of one of the parties or both of them. So it was wrong for the learned trial Judge to have decided upon it by himself. Learned Senior Advocate for the respondent submitted that the point about the learned Judge deciding suo motu to visit the locus did not form part of the complaint of the appellant; in the court below. What they complained of was the use the court made of the visit to the locus in quo. So, the appellants ought not be allowed to raise the point on the judge deciding suo motu to visit the locus for the first time in this Court as they have got no leave. In the alternative, learned counsel submitted that it is not correct that it is only on the application of a party or both of them that a trial Judge could undertake a visit to the locus. Nor is it correct that a trial Judge cannot visit a locus in quo after final addresses. The court did so in Arutu v. The Queen (1959) SCNLR 1574 F.S.C. 66 and Nwizuk & Ors. v. Eneyok & Ors. (1953) 14 W.A.C.A. 354, he submitted.
I shall deal first with the contention of the learned counsel for the respondent that that aspect of the point that the Judge was in error to have suo motu decided to go on a visit to the locus in quo. It is enough to set out the second ground of appeal formulated by the appellants in the Court of Appeal. It runs thus:
“(2)(a) That the learned trial Judge erred in law and misdirected himself in law in purporting to visit the locus in quo after the Counsel for the parties had both closed their respective cases and had addressed the Court on the evidence properly before it.
Particulars of Error and Misdirection
(i) The Court had no power to re-open the case for the parties and to rely on the evidence subsequently obtained in coming to its decision.
(ii) That the proper time to visit the locus in quo was before the close of the case for both parties and before the addresses.
(iii) That the appellants were denied the opportunity of addressing the Court on the evidence purportedly obtained at the locus in quo.”
It is clear that the appellants clearly raised the question of the vires of the court to undertake the visit to the locus at the stage and in the manner that he did so. Particulars (i) take care of the point.
But assuming, but not agreeing, that it was not raised in the Court of Appeal, I am of the view that this Court could have properly raised it itself and heard both sides on it under powers conferred upon it by Order 8 rule 2(6) of the Supreme Court Rules, 1985, which provides:
“2(6) Notwithstanding the foregoing provisions the Court in deciding the appeal shall not be confined to the grounds set forth by the appellant: Provided that the Court shall not, if it allows the appeal, rest its decision on any ground not set forth by the appellant unless the respondent has had sufficient opportunity of contesting the case on that ground.”
See: Guaranty Trust Co. v.Hannay & Co. (1915) 2 K.B. 536 at 563. The complaint itself strikes at the very roots of the adversary system of administration of justice which we operate. It is fundamental in that system that the Judge be all through seen as an impartial umpire who does not descend into the arena of the battle lest his vision might be obscured by the smoke emanating from the conflict. It is for the parties to get up their respective cases and prosecute them in accordance with the rules chosen by them from the Rules of the particular court. Anything that gives the impression that the Judge has abandoned his impartial position and taken sides is as vitiating to the system as want of jurisdiction or acting without judicial authority, See on this Fallon v, Calvert (1960) 2 Q,B. 201, Omoregbe v, Lawani (1980) 3-4 S,C. 108, at 120- 121; In re Enoch & Zaretsky Back & co’s Arbitration (1910) 1 K. B. 327; and Okoduwa & Ors, v, The State (1988) 2 N.W,L.R. 333, pp. 354 – 355.
Such issues are analogous to jurisdiction and other matters of fundamental vice. Once they are apparent on the record, even if none of the parties raises them, the court has a duty to invoke its powers under Order 8 rule 2(6) of the rules, bring them to the notice of both parties, and take their address on them. In this case in which the matter has been duly raised on a ground of appeal, as an issue and in argument, it is my view that even if it was not raised in the Court below, this Court ought to entertain argument on it.
I agree with the learned Senior Advocate for the appellants that in so far what transpired at the locus in quo must be regarded as part of the evidence in court, the learned Judge was in error to have decided on the visit suo motu…as it gave the impression that he was doing so in order to help the plaintiffs after he had come to the conclusion that there was nothing to choose between the evidence called by the plaintiffs and that called by the defendants.
As for the stage and the manner of the view of the locus, it is my view that of the two cases cited by the learned counsel for the respondents, Nwizuk’s Case (supra) is distinguishable and Arutu’ s case (supra) is deadly against him, In the case of Chief Aaron Nwizuk & Ors. vs, Chief Warribo Eneyok & Ors, 14 W.A.C.A, 354, the learned trial Judge intimated to the parties of his desire to visit the locus as soon as the addresses were closed and before he adjourned for judgment. Both parties acquiesced to it. Also at that stage, quite unlike the instant cases, he had not made up his mind as to which evidence to accredit and which to discredit. The case of Adeleke Arutu v. The Queen (1959) SCNLR 1574 F.S.C. 66 has in fact many features which are similar to this case. Like in this case, evidence and addresses of counsel had closed and the court adjourned for judgment. Then the Judge decided on the visit three days later. Like in this case in which the notes of inspection were kept by the clerk of court, the Judge merely kept a private and not an official note of inspection. The Federal Supreme Court held that the procedure laid down in R. v. Togbe 12 W.A.C.A, 184 was not complied with. The appeal was allowed solely on grounds of irregularities of the inspection. In this case, in addition to the irregularities I have already adverted to was the fact that the learned judge made use of the stories of some persons whom he met at the scene and interviewed. An example is one Okoye Udo whom none of the parties had called as a witness, Of him the learned trial Judge held:
“Similarly, I am satisfied that Okoye Udo whose house is located behind the house of the plaintiff got his land from the plaintiff’s father. It is strange that Okoye Udo has grown up children still alive, yet none of them considered it necessary to testify in this case to establish their fathers root of title to the land next door to the plaintiff and occupied by them,”
Then he continued:
“I am satisfied from evidence before me that apart from one or two members of the defendant’s family no other member of defendant’s family owns any land near the land in dispute, Plaintiff’s nearest neighbours are from the Umu Okpalor family who are in no way related to either the defendants or the plaintiffs, The plaintiffs have their relations living on the northern tip of the land in dispute and this was confirmed to me during the visit to the locus in quo.”
These are only some of the instances of the learned Judge substituting what he believed he saw or heard at the locus for the evidence given in court, This he could not do, Additionally there is nothing to show that the persons who spoke at the locus during the inspection and whose stories he decided to accredit testified on oath. There is also force in the submission of Chief Williams that even for some witnesses who had testified in court during the hearing, the visit looked like a second opportunity for them to give additional evidence. All these are irregularities galore. It is the law that on such visits to the locus parties and their witnesses are expected to give any explanation of evidence already given only, if so asked by the Judge. If any fresh evidence is to be received it must be on oath and be open to cross-examination. All the rules were broken in this case. The inspection was a complete sham.
The other issue on which I wish to express my opinion is that of consolidation. From the state of the facts I have set out above, the state of the parties at the time before the consolidation was as follows:
(i) In Suit No. 0/18/71 the plaintiffs were Akaigwe Family whereas the defendants were eight individuals from Umueze Family,
(ii) In Suit No.0/133/71, the plaintiffs were Ezuka sub-family of Umueze whereas the defendants were five individuals from Ebenato Family and one from Idenu quarter, all of Alor.
In other words the parties involved in the contest in the two suits are Akaigwe Family, Umueze Family, Ezuka Sub-Family of Umueze, persons from Ebenato and one person from Idenu Quarter. So it can be stated that the parties were complicated and that it was not possible for one suit to stand over as a cross action to the other.
The reliefs claimed are also different, Whereas in suit No, 0/18/71, the claims are for title, damages for trespass and injunction, in suit No. 0/133/71, there is added a claim for forfeiture. The plaintiffs in the latter case are saying that their ancestor made a customary grant of the land in dispute in that case, marked X in their plan, to the grandfather of the defendants Nos, 1,2,3 and 5, called Metu. Thus the basis of their own claim against the defendants is a grant according to customary law and is entirely different from that in Suit No. 0/18/71 which is based on tradition and acts of possession, and ownership, and arbitration. Even the plans are also different. Whereas in 0/18/71, the plaintiffs’ plan is SE/EC27/71 and the defendant’s plan is EC/165A/71; the plaintiff’s plan in 0/133/71 is EC.165/71. The defendants filed no plan, as they were entitled not to do so, But the pleading in paragraph 8 of the statement of defence makes it abundantly clear that the pieces or parcels of land in dispute in the two cases are different. It says:
“8. The said Eunice Akaigwe had been farming on the land without any interference by anybody including the Plaintiffs. Infact when the Plaintiffs unlawfully broke and entered the piece and parcel of land verged yellow and the subject matter in Suit No. 0/18/71 the Plaintiffs were not claiming the land now in dispute and never disturbed the quiet enjoyment of the said land by the said Mrs. Eunice Akaigwe and so the defendants did not include the piece of land in the area verged yellow when they took out their action in Suit No. 0/18/7I.”
The simple question posed by this issue in the appeal could be reduced into two questions. namely:
(i) Was a proper order of consolidation made in these cases in which the constitutions of the parties are different and rather complicated, the foundations of the claims of the two sets of plaintiffs are different and the dimensions of the lands in dispute in the two cases are not exactly the same
(ii) If the answer is in the negative, what is the effect of the fact that it was an order made by consent
Now Order 2 rule 7 of the High Court Rules of Eastern Nigeria, 1963, applicable in Anambra State provides:
“7. Causes or matters pending in the same Court may by order of the Court be consolidated, and the Court shall give such directions as may be necessary with respect to the hearing of the causes or matters so consolidated.
This is, no doubt, an enabling provision. Like all enabling provisions, it authorizes the Court to consolidate such suits within the parameter of established practice. But I must bear in mind the fact that the sole aim of consolidation is, as stated in the case of Imam Lawani Lediju v. Deini Odulaja (1943) 17 N.L.R. 15, per Baker, J.:
” ……………… to save the multiplicity of actions with the attendant costs where one action would serve to determine the rights of a number of persons where the said persons have the same interest in one cause or matter.” (Italics mine)
Hence in a number of cases this Court has decided on certain conditions for consolidation. The Court has, for example, made it clear that consolidation ought not be ordered unless there is some common question of law or of fact bearing sufficient importance to the rest of the subject matter of the action to render it desirable that the whole should be disposed of at the same time: see Diab Nasr v. Complete Home Enterprises (Nig.) Ltd. (1977) 5 S.C. 1, at II; Ifediorah & Ors. v. Ume & Ors. (1988) 2 N.W.L.R. (Pt. 74) 5, at 13 – 14.
Also, where, from the nature of the issues and the constitution of the parties in the two cases, consolidation will cause embarrassment to any of the parties at the trial, consolidation will not be ordered. Such was the case where the same landlord sued different tenants, each with his own defence: see M.A. Balogun v. Lagos Executive Development Board (1963) L.L.R. 13. Also in Daws v. Daily Graphic (1960) 1 All E.R. 397 where different plaintiffs were basing their claims on the same libel but the defences were different, an order for consolidation was refused.
In the instant case, the constitutions and capacities of the parties are different, and complicated. While it is true that consolidation is not quite the same thing with joinder of parties, the differences in the composition of the parties and the facts that they were not only different in places but suing or being sued in different rights lead to complications at the trial. The pleading in paragraph 8 of the statement of defence in suit No. 0/133/71 by some of the defendants who are the plaintiffs in 0/18/71 makes it clear that the pieces and parcels of land involved in the two suits ale different. Furthermore, the foundations of the two suits are substantially different, one raising mainly an issue of title but the other customary grant and forfeiture. From the above nature of the issues, not only were some of the parties likely to be embarrassed by a joint trial but also there does not appear to be in the two suits sufficient common questions of law or of fact bearing sufficient importance to the rest of the subject matter as to justify consolidation so that the two could be disposed of at the same time.
Then to the second question: does the fact that the appellants, through their counsel consented to the order for consolidation of the two suits now estop them from objecting to the consolidation As I found above, the trial was embarrassing. Indeed, a close reading of the judgment of the learned trial Judge shows that he merely regarded suit No. 0/133/71 as a cross-action to suit No, 0/18/71. The result was that he gave no consideration to the issues in suit No. 0/133/71 at all. He merely dismissed it after finding for the plaintiffs in suit No. 0/18/71. This cannot be a fair trial as it cuts at the root of the law that in consolidated actions, both consolidated suits still retain their separate identities and each of the suits must be considered on its merits. An embarrassing trial is not a fair trial. A fair trial must be fair to all concerned. An unfair trial is a breach of the appellant’s constitutional right to fair hearing guaranteed under section 33(1) of the 1979 Constitution. The constitutional right to fair hearing includes a public right which cannot be compromised, waived or lost by consent: see Ariori v. Elemo (1983) 1 S.C.N.L.R 1. In that case, this Court, per Eso, J.S.C. classified rights in terms of waiver as follows:- ‘
“(a) Fundamental rights that are for the sole benefit of the private individual. Example is right to speedy trial which a litigant can waive by asking for an adjournment of the case. So far as the adjournment does not give rise to a miscarriage of justice the waiver is permissible.
(b) Fundamental rights that are for the benefit of the litigant and the public. Again to give the example of a speedy trial and a litigant seeking an adjournment in the case, or in other words waiver of the right, but the adjournment sought is of a nature that the court will lose the advantage it has of accurate assessment of the witnesses it had observed in the course of trial. In such a case waiver is not permissible, To permit it will lead to injustice. It is against public policy to compromise illegality (manifest or latent).
(c) Where the question of waiver relates to a right in the control of the State or, in the sole control of the court. A good example is the instant case where the court, after the close of the case for both parties adjourned for such a long time for judgment as to make it lose control over the case. In such cases the parties have nothing to waive. It is not within their competence to waive anything.”
In my view the right to fair hearing comes within the second category. This is because fair hearing in a properly constituted court or tribunal is an essential prerequisite to peace and stability in society. The only alternative to it is chaos and jungle justice. Every member of the Nigerian society is as much interested in the peace and stability of the nation as the litigant in court who must have qualitative justice for him to be satisfied, win or loose. This situation very much brings to mind the opinion of the former Chief Justice of India where he stated in the case of Behram Khurshid Pesikaka v. Bombay State (A.I.R. (42) (1955) 123:
“The fundamental rights have not been put in the Constitution merely for individual benefit, though ultimately they come into operation in considering individual rights. They have been put there as a matter of public policy and the doctrine of waiver can have no application to provisions of law which have been enacted as a matter of constitutional policy.”
I may not go to the extent the eminent Chief Justice has gone, in view of the first category of cases as this Court has analysed in Ariori’s Case (supra). There may be some instances in which a fundamental right can be waived. Such may be the case in a strictly private right which has no public implications, such as some rights to private and family life. But even in that category, for it to be capable of waiver, the act complained of must have no public implications. In the instant case, I have taken the trouble to show that the consolidation occasioned grave miscarriage of justice. A person adversely affected by it can still complain even though he consented to the proceedings. As it is so, it is immaterial that the order for consolidation in this case was made by consent of counsel on both sides.
Because of the order I intend to make and because my learned brother, Uwais, J.S.C., has covered all the grounds, and, subject to what I have said about consolidation of the two suits, I agree with him, I do not propose to express any opinion on the rest of the issues canvassed before us.
For all I have said above and the fuller reasons given in the lead judgment, the appeal succeeds and is allowed. There has been a mistrial. But because of the opinion expressed by the learned trial Judge about the quality of evidence adduced by both sides before he went on the ill- conceived and badly conducted inspection of the locus in quo, and having listened to the addresses of counsel, I agree that a non-suit is the proper order. I so order, and subscribe to the other orders made in the lead judgment.
A. B. WALI, J.S.C.: I am privileged to have read in advance the lead judgment of my learned brother, Uwais, J.S.C. I entirely agree with his reasoning and conclusions.
For these same reasons and conclusions, which I hereby adopt as mine, I shall also allow the appeal. The appeal is accordingly allowed and the decisions of both the High Court and the Court of Appeal are hereby set aside and in place thereof an order of non-suit in each of the two cases which constitute the consolidated action is substituted. The Respondents shall pay N1,000.00 costs to the appellants in this appeal.
E. O. I. AKPATA, J.S.C: I have had a preview of the judgment of my learned brother Uwais, J.S.C., while in draft, I am in agreement that the consolidated actions, suit Nos. 0/18/71 and 0/133/71, filed in the High Court of the Onitsha Judicial Division in Anambra State be non-suited.
The salient facts of the case have been meticulously stated by my learned brother. I adopt them for purposes of my brief comments.
Order 11 Rule 7 of the High Court Rules Cap. 61 Laws of Eastern Nigeria 1963 applicable in Anambra State provides:
“Causes or matters pending in the same Court may by order of the Court be consolidated, and the Court shall give such directions as may be necessary with respect to hearing of the causes or matters so consolidated.”
The provision of Order 11 Rule 7 is far from being in pari materia with Order 4 Rule 10/1 of the Supreme Court Rules (White Book) England. While Order4 Rule 10/1 of the White Book classifies the type of cases pending in the High Court that may be consolidated under certain conditions, there is no restriction as to the type of cases pending in the same Court in Anambra State that may be consolidated.
The position however is that although Order II Rule 7 does not appear to restrict the Court’s discretion in consolidating actions before it, it will not consolidate actions which have no common question of law or fact or actions where the rights or reliefs claimed do not relate to the same subject-matter. A consolidation of actions which do not have incidents of common questions of law or fact or are not based on the same subject-matter or do not relate to the same transaction is bound to lead to intractable confusion and perhaps an exercise in futility. Order 4 Rule 10/1 of the White Book only serves as a guide to the Anambra State High Court in the exercise of its discretion in granting applications for consolidation. It does not govern it. A judgment will not be set aside where the consolidation of suits was at the instance of the parties and the consolidation has in no way brought about a wrong evaluation of evidence or a wrong resolution of the legal issues arising from the suits. I therefore hold that the consolidation of the two cases was in order.
It was the submission of Mr. Onyiuke, SAN, for the appellants that the learned trial; judge having expressed the view that “he had very little to choose between the evidence of both sides” he ought to have dismissed the plaintiffs’ claim. His authority is Efetiroroje v. Okpalefe II (1991) 5 NWLR (Pt. 193) 517. On the other hand Mr. Anyamene SAN, for the respondents contended that the submission of Mr. Onyiuke would only apply if the trial court had used the expression “nothing to choose” instead of “little to choose’. It seems to me to be trite law that where at the end of a case a court has come to the conclusion that there is nothing or little to choose between the evidence of the opposing parties the plaintiff’s case should invariably be dismissed. In the case of Kodilinye v. Odu (1935) 2 WACA 336 at 338, the genesis of it all, the West African Court of Appeal held:
“So if the whole evidence in the case be conflicting and somewhat confused and there is little to choose between the rival traditional stories, the plaintiff fails in the decree he seeks, and judgment must be entered for the defendant.
In effect where there is little to choose between the evidence of the opposing parties arising from the conflict in their evidence the plaintiff’s case would be dismissed. In other words, if the court intends to enter a non-suit in favour of the plaintiff, it should avoid using the expression there is “little to choose” or “nothing to choose” between the rival or conflicting evidence. Where it becomes clear that there is little or nothing to choose between the evidence adduced by the respective parties, it would mean that the plaintiff has not discharged the burden of proof required of him. His action would be dismissed.
The order of a non-suit is a creation of statute. It is applied in accordance with the intendment of the provision of the relevant statute. The provisions for its application have been abrogated in a number of Commonwealth jurisdictions, particularly in the High Court in England. It has ceased to be applied in Lagos State. The High Court of Anambra State is still vested with the power to non-suit improper cases. By Order 48 rule 1 of High Court Rules applicable in Anambra State, the High Court “may, in any suit, without the consent of parties non-suit the plaintiff, where satisfactory evidence shall not be given entitling either the plaintiff or defendant to the judgment of the court”.
In effect a court may non-suit the plaintiff in circumstances where neither the plaintiff nor the defendant is entitled to the judgment of the court, not where “there is little to choose” between the evidence of the opposing parties. There are certain circumstances where either the plaintiff or the defendant will not be entitled to the judgment of the court and that will therefore necessitate the non-suiting of the plaintiff’s case. For instance the plaintiff will be non-suited where he has only failed to get judgment on account of a hitch of which the defence is not entitled to take advantage, See Odiete & Ors. v. Okotie & Ors. (1972) 6 sc. 83 at 90.
The hitch in the instant case is in my view the manner the proceedings in the locus in quo and the subsequent proceedings in court were conducted. It is to be noted that the parties did not raise objection to a visit to the locus in quo. They took part on the proceedings. I am of the firm view that if the proceedings at the locus in quo and subsequent proceedings in court had been properly conducted the wrong use of the expression “there is little to choose” by the learned trial judge would not have been a material factor in the circumstances of this case.
As Bello, JSC. (now CJN.) observed in the case of African Continental Bank Ltd. v. Chief Festus Yesufu (1980) I Sc. 49 at 61 “in considering whether to grant a non-suit instead of a dismissal the court has to weigh all the facts and circumstances of the case and see whether the scale of justice has tilted on the side of a non-suit or on the side of dismissal. In order words the court has to decide what is fair and just to the parties in the circumstance of the ease”.
It is plain to me that where, as in this case, before an improper visit to the locus in quo was carried out the plaintiffs in each of the consolidated cases appeared, for technical reason, not to have adduced sufficient evidence to establish their respective claims in respect of the same subject-matter and it is not in doubt that the subject-matter belongs to one side or the other, it would not meet the ends of justice to dismiss their respective claims. To do so would amount to saying that neither of the parties is entitled to the land. It would be a time-bomb of a judgment. The parties would no longer be able to have recourse to the court of law as they would have been banned from so doing by the dismissal of their actions. The only alternative would be their taking the law into their hands. I allow the appeal and enter a non-suit in suits Nos. 0/18/71 and 0/133/71. I adopt the order as to costs made by my learned brother Uwais, JSC.
Appeal allowed. Non-suit ordered.
Appearances
Chief ERA Williams, SAN (with him, Chief G.C.M. Onyiuke, S.A.N.,
Dr. O. Okongwu, T.E. Williams and E.O. Ekpo) For Appellant
AND
A.N. Anyamene, S.A.N. (with him, M.E. lzuora (Mrs) -for the Respondents For Respondent
