ALHAJI RAFIU KURANGA & ORS v. OLATUNDE GEORGE & ANOR
(2015)LCN/8002(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 9th day of December, 2015
CA/L/314/2009
RATIO
PRACTICE AND PROCEDURE: THE DUTY OF THE COURT WHERE TWO OR MORE CASES OR SUITS ARE CONSOLIDATED AND HEARD OR TRIED TOGETHER BY A COURT
The general rule is that where two or more cases or suits are consolidated and heard or tried together by a court each of them would retain its distinct and separate identity for the purposes of determination of the issues canvassed therein. Thus a court is required to render or give judgment separately for each of the consolidated cases, because consolidation is merely ordered for convenience and to save time in the process of trial. However, in the case of Machika v. Ksha (2011) 3 NWLR (pt 1233) 15 at 40; the Court of Appeal held that the fact that the trial court delivered only one judgment in respect of the two consolidated suits was in order, since it did not result in any miscarriage of justice. per. UZO I. NDUKWE-ANYANWU, J.C.A.
PRACTICE AND PROCEDURE: WHO CAN SIGN A LEGAL DOCUMENT AND CAN A FIRM OF LEGAL PRACTITIONERS QUALIFY TO PRACTICE AS BARRISTER IN NIGERIA AND ALSO SIGN COURT PROCESSES
The law has made it clear in a plethora of cases who can sign a legal document. See Okafor v. Nweke (2007) 10 NWLR Pt 1043 Pg 521. The Supreme Court per Onnoghen JSC made it clear who can sign a writ, an originating process in a suit. Section 2(1) of the Legal Practitioners Act provides: “Subject to the provisions of this Act, a person shall be entitled to practice as a Barrister and Solicitor if, and only if, his name is on the Roll”
With the above, can a firm of Legal Practitioners qualify to practice as Barrister in Nigeria and also sign court processes? Section 24 of the Legal Practitioners Act defines a “Legal Practitioner” to be a person entitled in accordance with the provisions of this Act to practice as a Barrister or as a Barrister and Solicitor, either generally or for the purpose of any particular office proceeding. See Okafor v. Nweke (Supra) Onnoghen JSC continued to hold “that the combined effect of the above provisions is that for a person to be qualified to practice as a Legal Practitioner he must have his name in the Roll otherwise he cannot engage in any form of Legal practice in Nigeria.” per. UZO I. NDUKWE-ANYANWU, J.C.A.
PRACTICE AND PROCEDURE: CONSOLIDATION; THE PURPOSE AND THE EFFECT OF CONSOLIDATION OF ACTIONS, SUITS OR APPEAL
It must be pointed out, however, that consolidation is merely for the purpose of trial in order to save time and costs, which would otherwise be invoiced if these same issues have to be dealt with in a second trial, with the same evidence taken all over again, “See Ladiju v. Odulaja (1943) 17 NLR pg.15, NASR v. Complete Home Enterprises (Nig) Ltd (1977) SC pg 1. The Courts have cautioned in the case of Suleiman v. Zakari (2009) LPELR 4984 that: “It should be reiterated, that for the avoidance of doubt, that its trite and Fundamental Principles that where actions, suits or appeals are consolidated by court or a Tribunal, as the case may be, each retains the separate and distinct existence thereof” Thus at the end of the joint trials or proceedings, a separate judgment must be given regarding each suit, action or appeal. The Court should not therefore determine one action and ignore the other. Most undoubtedly, the whole essence of consolidating actions is to save time and costs. See NASR v. Complete Home Enterprise (Nig) Ltd (Supra), Lediju v. Odulaja (Supra), Dugbo v. Kporoara (1958) WRNLR pg.73; Ezike v. Egbuata (Supra). per. UZO I. NDUKWE-ANYANWU, J.C.A.
COURT: JURISDICTION; THE IMPORTANCE OF JURISDICTION TO ANY PROCEEDINGS AND THE EFFECT OF LACK OF THE SAME
Where a writ or a suit is found to be incompetent, the court is robbed of the necessary vires to continue with adjudication. “The question of jurisdiction is very fundamental that it should be determined first by the courts before starting any proceedings. If the Courts proceeds without jurisdiction, all proceedings however well conducted amount to a nullity. It is trite law that the issue of jurisdiction can be raised at any time by a party even on appeal in the Supreme Court. However, it is important to note that issues of jurisdiction must be raised timeously and resolved first before embarking on further proceedings.”
Ukwu v. Bunge 1997 8 NWLR Pt.578 pg 527, Jeric Nig Ltd v. Union Bank of Nig Plc 2000 12 SC Pt 2 of 133, AG Lagos State v. Dosunmu 1998 3 NWLR Pt 111 Pg.552, Nonye v. Anyichie 2005 2 NWLR Pt 910 Pg.623. Once a court lacks jurisdiction, a party cannot use any statutory provision or Common Law principles to impose it because absence of jurisdiction is irreparable in law. The matter ends there and the only procedural duty of the Court is to strike out the matter. Umanah v. Attah (2006) 17 NWLR Pt.1009 pg 503. per. UZO I. NDUKWE-ANYANWU, J.C.A.
COURT: JURISDICTION; WHAT MUST THE COURT LOOK AT IN CONSIDERING WHETHER A COURT HAS JURISDICTION TO ENTERTAIN A MATTER
In considering whether a Court has jurisdiction to entertain a matter, the Court is guided by the claim before it, by critically looking at the writ of summons and statement of claim. See Gafar v. Government of Kwara State (2007) 4 NWLR Pt.1024 pg 375, Onuorah v KRPC (2005) 6 NWLR Pt.921 pg 395, Tukur v. Government of Gongola State (1989) 4 NWLR Pt.117 pg 517 Nkuma v. Odili (2006) 6 NWLR Pt.077 pg 587. per. UZO I. NDUKWE-ANYANWU, J.C.A.
COURT: JURISDICTION; WHO CAN RAISE THE ISSUE OF JURISDICTION
Parties to a suit can raise the issue of jurisdiction and a Court can suo motu raise the same issue provided the parties are given the opportunity to react to the issue. Wariko v. Ade-John (1999) 9 NWLR Pt 619 pg 407, Galadima v. Tanbai (2000) 6 SC Pt.1 pg 196. per. UZO I. NDUKWE-ANYANWU, J.C.A.
JUSTICE
UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
Between
1. ALHAJI RAFIU KURANGA
2. ESTATE OF LOUIS OMOTAYO JOSEPH
3. MR OYESOLA OYEWO
4. MR RAHMONI OYEWOLE Appellant(s)
AND
1. OLATUNDE GEORGE
(Trading as George Auto Engineering Works)
2. AKINOLA GEORGE Respondent(s)
UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): By a motion on notice filed on 19th of November, 2013 and brought under Order 7 Rule 1 of the Court of Appeal Rules 2011, Section 15 of the Court of Appeal Act 2004 and under the inherent jurisdiction of this Court, the Respondent/Cross-Appellant/Applicant herein prayed for the following orders:
“1. An order of this Honourable Court joined Estate of Louis Omotayo Joseph, Alhaji Olasunkanmi (otherwise called Alhaji Rafiu Kuranga), Mr. Oyesola Oyewo and Mr. Rahmoni Oyewole as parties to the?Defendant’s counter-claim in the Suit No: ID/1006/98 before the Lower Court.
2. An order of this Honourable Court granting leave to the Respondent/Cross Appellant to amend his pleading in the consolidated Suits from which the appeal therein emanated – to wit: the Statement of Defence and Counter-Claim in Suit No.: ID/1006/98 – Alhaji Rafiu Kurango v. Tunde George found on page 19 of the record of appeal, by properly setting out his case on the pleadings as underlined in the proposed Amended Statement of Defence and Counter- claim, attached herein.
3. An order of this Honourable Court
1
granting leave to the Respondent/Cross Appellant to amend and file a Further Amended Respondent’s Brief of Argument as well as an Amended Cross Appellant’s Brief of Argument to?accommodate arguments properly based on the pleadings before the Honourable Court upon which parties had joined issues and given evidence before the Lower Court.
4. An order of this Honourable Court granting leave to the Cross/Appellant/Applicant to file and transmit same to this Honourble Court as additional record, the Amended Statement of Defence and Counter Claim filed by virtue of the Orders granted by the Honourable Court herein, and same to form part of and be used as additional records for the hearing of the appeal herein”.
The motion is supported with an affidavit. Annexed to the affidavit are 5 exhibits which include: -a copy of the judgment of the Lagos State High Court delivered by Hon. Justice O. A. Williams on 22nd of February, 2008, Statement of Defence and Counter-claim of the Respondent/Applicant dated 5th April, 2000 in Suit No.LD/1006/98, Amended Statement of Claim in suit no. LD/166/99 filed on 7th of November, 2007, Proposed Amended Statement of Defence
2and Counter-Claim, Plaintiff/Respondent Reply and Defence to Counter-Claim.
The Respondents in this application, who are the Appellants/Cross-Respondents in the substantive appeal opposed the application and filed a counter-affidavit on 19th August 2014 as well as a further and better counter-affidavit on 27th February, 2015. Attached to it was Exhibit A (Writ of Summons filed by the Applicant in suit no.LD/166/99).
By order of court, parties filed their written addresses. The Applicants’ written address was filed on 24th of March, 2015, while the Respondents’ written address was filed on the 22nd of April, 2015 and deemed properly filed on 29th of April, 2015. The Applicant’s reply was filed on 29th of April, 2015.
The Applicants in their written address formulated a sole issue for determination viz:
“Whether given that the conditions to make the Hon, Court herein grant the application for amendment herein sought is present in the extant application, there is any other reason why the Hon. Court will not grant the said prayer herein.”
The Respondents on their part also formulated a sole issue for determination viz:
“Whether the
3
present motion dated and filed on the 19th November, 2013 is not incompetent, mala fide and thus liable to be dismissed.”
At page 1 of the Applicants’ written address, learned Counsel for the applicants abandoned prayer 1.
Continuing with the submission for the remaining prayers in the motion paper, learned Counsel for the Applicants submitted that by virtue of the provision of Section 15 of the Court of Appeal Act 2004 and a number of judicial precedents this court has the power to grant an application for amendment of pleading on appeal. He further submitted that one major condition for the grant of such an application for amendment on appeal is that the amendment sought is in line with evidence already led at the trial court and will not entail the giving of fresh evidence. Counsel referred to paragraph 15-17 of the affidavit in support of the motion wherein the Applicants deposed to the fact that no new evidence would be required, as the amendment is in line with evidence already adduced before the trial court. He also pointed out that the fact that no new evidence will be adduced has been admitted by the Respondents as the statement was not
4
specifically challenged by the Respondents in the Counter affidavit or further and better counter- affidavit. He relied on the case of Lawson-Jack v. SPDC (Nig) Ltd (2002) FWLR (Pt 120) 1697.
Counsel further submitted that the Respondents’ opposition to this application is based on two grounds to wit:
1. Judgment of the Lower Court was a single judgment in a consolidated action.
2. The pleading in the counter-claim in Suit No.LD/1006/98, sought to be amended herein, had no parties thereto.
It is the contention of Counsel that the two grounds are misconceived.
As regards the first ground, it is the contention of the Applicants’ Counsel that ground is one of the issues being raised by the Respondents in the substantive appeal. The Respondents has formulated a ground of appeal as well as an issue for determination from the same ground. He therefore submitted that the determination of this issue at this stage will amount to determining the substantive issue at interlocutory stage which this court is not allowed to do. Counsel referred to the case of Eyo v. Ricketts (2005) All FWLR (Pt.241) 387.
Counsel submitted in the alternative
5 that even if the issue can be determined at this stage that the trial court actually gave distinct decisions in the same judgment each of which decisions considered the two consolidated cases on their merit. Counsel referred to the judgment of the trial court pointing out areas showing the determination of the trial court in respect of each of the consolidated cases. Counsel referred to pages 12 and 31 of Exhibit A (Judgment of the trial court). Counsel also referred to the case Afoezioha v. Nwokoro (1995) 8 NWLR (Pt 615) 393.
As regard the 2nd ground, Counsel submitted that a counter claim is not an originating process, so therefore any alleged defect in it is merely an irregularity which will not vitiate the proceeding. See Adebayo Adegbola v. Idowu (2014) All FWLR (Pt 747) 712. He however contended that it is not correct that there are no parties to the counter-claim and even if there were no parties, the Respondents were not misled as to who were the parties thereto as they filed a defence and also raised a preliminary objection to the effect that the counter-claim was an abuse of court process but same was dismissed by the Lower Court and
6
there was no appeal as to that effect.
Counsel further submitted that on the authorities of Board of Inland Revenue v. Rezcallah & Sons Ltd (1962) 1 All NLR 1 and Metal Construction (W.A) Ltd v. Migliore (supra); the court can insert the names of parties into the pleadings either suo motu or upon application.
In response to the averments in paragraph 4 of the Respondents’ further and better counter-affidavit wherein the Respondents argued that the amendment sought relates to facts outside the Applicants’ Cross Appeal is misconceived. He submitted that in granting the application for amendment what is important or what the court should consider is whether there is evidence before the court already to justify the proposed amendment. He also contended that the proposed amendment constitutes facts in support of the allegation of the infringement of the Applicants’ right for which they sought the special damages before the Lower Court and which now constitutes the crux of his cross appeal.
Finally, Counsel submitted that paragraph 5 of the Respondents’ further and better counter-affidavit ought to be struck out as it is in breach of the
?7provision of Section 115 of the Evidence Act 2011 on the ground that it constitutes legal argument and conclusion. Counsel further submitted that even if paragraph 5 is said to be valid it is his contention that this application only affects the pleadings in Suit No.LD/1006/98.
He therefore urged this court to grant the application for amendment.
In opposing the application, learned Counsel for the Respondents raised a preliminary point of law in their written address (particularly at pages 2 – 4), seeking a dismissal of the application in limine on the ground that the withdrawal of prayer 1 (one) knocks off the basis of the entire application. In addition Counsel contended that there were no counter-claim before the Lower Court as the purported counter-claim had no parties and therefore a nullity. He referred to the provision of Order 17 Rule 7 of the High Court of Lagos State (Civil Procedure) Rules; Nwankwo v. Yar’ Adua (2010) 12 NWLR (Pt 1209) 518; Zenith Bank Plc v. Ekereuwem (2012) 4 NWLR (Pt.1290) 207; Fidelis Nwadialo – Civil Procedure in Nigeria 2nd edition page 396 ; A. Obi Okoye – Essays on Civil Proceedings Vol 1, 2nd edition page
8 298 ; Macfoy v. UAC (1961) 3 ALL ER 1169.
Where the motion is considered on the merits, Counsel submitted that it is not the duty of the Respondents to deny in his counter affidavit the fact that fresh evidence will not be called, rather it is the duty of the Applicant to show by affidavit evidence, the evidence on record to justify the application in order to show that the Application will not require the calling of fresh evidence. He further contended that the amendment being sought are irrelevant and immaterial for the purpose of determining the Applicants’ cross appeal as it relates to facts outside the complaint in the cross appeal and same should be dismissed. Counsel also contended that the application is brought in bad faith as it is brought to overreach the Respondents issue 1 in the substantive appeal. He cited the following cases Adekeye v.?Akin-Akin- Olugbade (1987) 3 NWLR (Pt.60) 274; Ojah & Ors v. Ogboni & Ors (1976) 1 ALL NLR 346. He thus urged the court to refuse the application.
As regard Respondents submission in paragraph 2.01 of their written address, learned Counsel for the Applicant submitted that the Respondents
9 misquoted or rather only quoted a portion of the ground of the application before the court and left out the other portion with the aim to mislead the court to believe that the ground of the application is limited to the abandoned prayer 1. He went ahead to produce the other portion which affects the surviving prayers in the application as follows:
“…and also adjudicate between the said parties in the interest of justice by allowing the Respondent/Cross Appellant take benefit of the evidence already led before the Lower Court and which will not entail having to give fresh or further evidence herein.”
As regard the Respondents’ submission in paragraph 2.03 – 2.04 Applicants’ Counsel submitted that the Respondents had waived the irregularity by joining issues with the Applicants thereby extinguishing their right to complain. He also submitted that the Respondents had failed to identify the rule of court cited by them neither did they show that same was operative as at the time this action was filed. He thus urged the court to discountenance the argument as it is misconceived.
As regard Paragraph 2.06-2.07 of the Respondents written address
10Applicants’ Counsel submitted that the argument of the Respondents that the court should strike out prayer 1 for being incompetent is misconceived as the said prayer had been abandoned and is therefore not before the court. He also urged the court to reject the Respondents’ invitation in paragraph 2.08.
As regard paragraph 2.10, Counsel submitted that there is nothing placed before the court to prevent this court from considering the application on its merits.
As regard paragraph 4.01 – 4.02, Counsel submitted that all that is required from the applicants is to show that evidence was already led for the court to grant the application for amendment and nothing else.
As regards paragraph 4.03, Counsel submitted that the Applicants by deposing in paragraph 10 of their affidavit in support had discharged the duty of placing before the court the evidence upon which the Application is based by referring to the records of appeal which contained the evidence to justify the amendment sought.
As regard paragraph 4.05, Counsel contended that the Respondents have failed to identify which aspect of the amendment is outside the evidence led.
?As
11
regard Respondents’ argument in paragraph 4.07, Counsel submitted that all the Applicants are trying to do is to make available facts that will aid the court to come to a just decision since this court possesses the power to grant this application.
As regards Respondents’ argument in paragraph 4.09 – 4.13, Counsel submitted that the Respondents are estopped from making such argument having withdrawn an application filed before this court on 15th of January, 2013 wherein the Respondents had canvassed the same argument. He further contended that the arguments are irrelevant in the determination of the application for amendment or the matter in Suit No. LD/1006/98.
As regards Respondents’ argument in paragraph 4.14 – 4.18, Counsel submitted that the respondents have failed to show what made the filing of this application mala fide. He also contended that in consolidated actions, judgment will be said to have been separately given when the claims in each of the actions so joined are distinctively considered and determined. He referred to the judgment of the Lower Court wherein the trial Judge made pronouncement in each of the claims.
?As regards
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Respondents’ argument in paragraph 4.20, Counsel submitted that Respondents argument thereto was wrong as it tried to take over the power of this Honourable Court by deciding a matter which had not been determined on the merit.
Concluding Counsel urged the court to reject the Respondents opposition and grant the application.
At the point of writing a considered ruling, the Court observed that two writs were filed in LD/166/99 and ID/1006/98. Both were consolidated and the trial of both began. The learned trial Judge at the end of the trial wrote his considered judgment encompassing all that he perceived to be the issues. He also gave orders in the single judgment affecting the two cases.
This Court observed that in suit No.ID/1006/98 filed on the 30th of April, 1998 was signed by Oyesola Oyewo, Esq plaintiff solicitor of 79, Bank Anthony Way Ikeja. See pg 1-2 Record of Appeal.
In suit No: LD/166/99 filed on the 27th of January, 1999 it was signed by IDOWU LEGAL PRACTITIONERS of 330 Muritala Muhammed Way, Yaba Lagos see pg 24-25 Record of Appeal.
On seeing this, the Court wrote the Learned Counsel to both parties to address it on the
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legal implication of the writ signed by “IDOWU LEGAL PRACTITIONERS” .
Both Counsel filed their written addresses on the issue. Their various arguments for and against are summarized hereunder:
Learned Counsel for the Appellants submitted that consolidation merely unites cases for purposes of the trial. The suits still retain their identity and still remain different suits for all intents and purposes except for the purpose of trial and as such separate judgment ought to have been entered in each suit. Counsel referred to Fidelis Nwadialo – Civil Procedure in Nigeria 2nd Edition pg 604 ; Kutse v. Bakfur (1994) 4 NWLR (Pt 337) 196 at 209 Paragraph F; Sawuta v. Ngah (1998) 13 NWLR (Pt.580) 39 at 49; Ezike v. Egbuaba (2008) 11 NWLR (Pt.1099) 627 at 658.
In the instant case, Counsel contended that the fact that a single judgment was delivered in respect of the two consolidated suit was not only procedurally wrong but also greatly affected the distinctiveness of the consolidated suits. In that a defect in one will automatically affect the other. Thus, the defect in Suit No. LD/166/99 robs the trial court of jurisdiction to determine Suit No.LD/1006/98.
14 He referred the Court to Macfoy v. UAC (1961) 3 All ER 1169. He further contended that since the Court cannot extricate the judgment of the competent suit from the incompetent one, the whole judgment of the trial court is liable to be set aside. He referred the Court to Ayalogu v. Agu (1998) 1 NWLR (Pt 532) 129.
The Respondents’ Counsel on the other hand, before delving into the issue urged this court to vacate its directive as same will be prejudicial to the substantive appeal. It is the contention of Counsel that the issues directed to be addressed by the court form part of the issues canvassed in the substantive appeal and a determination of same will affect this appeal. He also submitted that it is settled law that the court cannot determine at an interlocutory stage, any issue touching on the substantive matter.
On the issue, learned Counsel for the Respondents acknowledged that consolidated actions though tried in the same proceeding remain separate and distinct from each other, each having its own judgment given at the end of the common trial. Counsel further submitted that in such circumstances a defect in one of the actions so consolidated
15
would not affect the merit of the other action(s) not so found defective. He referred to Dugbo v. Kporoaro (1958) WRNLR 73 and Ezike v. Egbuaba (Supra); Kalu v. Chima (2007) 17 NWLR (Pt 1062) 187.
He also contended that the Lower Court delivered two judgments in this case as the rights of parties were separately determined notwithstanding that the pronouncement were contained in a judgment delivered simultaneously in one single judgment.
The general rule is that where two or more cases or suits are consolidated and heard or tried together by a court each of them would retain its distinct and separate identity for the purposes of determination of the issues canvassed therein. Thus a court is required to render or give judgment separately for each of the consolidated cases, because consolidation is merely ordered for convenience and to save time in the process of trial. However, in the case of Machika v. Ksha (2011) 3 NWLR (pt 1233) 15 at 40; the Court of Appeal held that the fact that the trial court delivered only one judgment in respect of the two consolidated suits was in order, since it did not result in any miscarriage of justice.
?The question
16 to be considered in this appeal is not the question of the trial Judge delivering one judgment for the two consolidated cases. It goes beyond that. First and foremost one must consider the originating processes in the trial Court which occasioned this appeal.
Suit No: ID/1006/98 filed on the 30th of April, 1998 was signed by Oyesola Oyewo. However suit No. LD/L66/99 was signed by Idowu Legal Practitioners.
The law has made it clear in a plethora of cases who can sign a legal document. See Okafor v. Nweke (2007) 10 NWLR Pt 1043 Pg 521. The Supreme Court per Onnoghen JSC made it clear who can sign a writ, an originating process in a suit. Section 2(1) of the Legal Practitioners Act provides:
“Subject to the provisions of this Act, a person shall be entitled to practice as a Barrister and Solicitor if, and only if, his name is on the Roll”
With the above, can a firm of Legal Practitioners qualify to practice as Barrister in Nigeria and also sign court processes?
Section 24 of the Legal Practitioners Act defines a “Legal Practitioner” to be a person entitled in accordance with the provisions of this Act to practice as a Barrister or as a
17
Barrister and Solicitor, either generally or for the purpose of any particular office proceeding.
See Okafor v. Nweke (Supra) Onnoghen JSC continued to hold
“that the combined effect of the above provisions is that for a person to be qualified to practice as a Legal Practitioner he must have his name in the Roll otherwise he cannot engage in any form of Legal practice in Nigeria.”
The law firm of Idowu Legal Practitioners is not a person known to Law. The Law envisages a person whose name is in the Roll of Legal Practitioners. The Law firm Idowu Legal Practitioners is a name unknown to Law as it is not the name of a Legal Practitioner in the Roll as envisaged by the Legal Practitioners’ Act.
The writ in suit No. LD/166/99 was signed by Idowu Legal Practitioners, a name unknown to Law. The effect of this signature is that it rendered Suit No. LD/166/99 incompetent.
It would be recalled that suit No: ID/1006/98 and LD/166/99 were both consolidated in the Lower Court. Both cases were tried and a single judgment delivered.
?It is the practice in our Courts that suits may be consolidated. Consolidation may be ordered if the trial Judge
18 is satisfied that the issues in the suit can be resolved in one proceeding rather than in separate proceedings. This decision is arrived at, if the learned trial Judge is satisfied that:
(a) Some common question of law or fact arise in both or all the causes or matter or
(b) The rights to relief are claimed in respect of or arise out of the same transaction or series of transactions or
(c) For some other reasons it is desirable to make an order under the Rule. See Iloabachie v. Ebigbo (2000) 8 NWLR Pt. 668 pg.197, Okwuagbala v. Ikwuem (2010) LPELR 2538.
Ikongbeh JCA as he then was held in the case of Alaribe v. Nwankpa (1999) LPELR 6742 that:
“two or more suits may be consolidated to assume a new character, giving the trial Judge the power to treat them together and be seized of the issue involved in the consolidated action. It must be pointed out, however, that consolidation is merely for the purpose of trial in order to save time and costs, which would otherwise be invoiced if these same issues have to be dealt with in a second trial, with the same evidence taken all over again, “See Ladiju v. Odulaja (1943) 17 NLR pg.15, NASR v.
19
Complete Home Enterprises (Nig) Ltd (1977) SC pg 1.
The Courts have cautioned in the case of Suleiman v. Zakari (2009) LPELR 4984 that:
“It should be reiterated, that for the avoidance of doubt, that its trite and Fundamental Principles that where actions, suits or appeals are consolidated by court or a Tribunal, as the case may be, each retains the separate and distinct existence thereof”
Thus at the end of the joint trials or proceedings, a separate judgment must be given regarding each suit, action or appeal. The Court should not therefore determine one action and ignore the other. Most undoubtedly, the whole essence of consolidating actions is to save time and costs. See NASR v. Complete Home Enterprise (Nig) Ltd (Supra), Lediju v. Odulaja (Supra), Dugbo v. Kporoara (1958) WRNLR pg.73; Ezike v. Egbuata (Supra).
In the present appeal, the two suits were consolidated, one competent the other incompetent. Trial commenced with the consolidation cumulating in the trial Judge delivering a single judgment, albeit resolving all the issues raised in both cases.
As was earlier said in this judgment, consolidation is to save cost and time where
20
the cases are competent before the Court. In this appeal, one of the writs, the originating process is incompetent having been signed by a firm of Legal Practitioners.
Ordinarily, consolidation of cases is good for all intents and purposes. However, in this appeal one of these cases consolidated is incompetent.
Where a writ or a suit is found to be incompetent, the court is robbed of the necessary vires to continue with adjudication.
“The question of jurisdiction is very fundamental that it should be determined first by the courts before starting any proceedings. If the Courts proceeds without jurisdiction, all proceedings however well conducted amount to a nullity. It is trite law that the issue of jurisdiction can be raised at any time by a party even on appeal in the Supreme Court. However, it is important to note that issues of jurisdiction must be raised timeously and resolved first before embarking on further proceedings.”
Ukwu v. Bunge 1997 8 NWLR Pt.578 pg 527, Jeric Nig Ltd v. Union Bank of Nig Plc 2000 12 SC Pt 2 of 133, AG Lagos State v. Dosunmu 1998 3 NWLR Pt 111 Pg.552, Nonye v. Anyichie 2005 2 NWLR Pt 910 Pg.623.
Once a
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court lacks jurisdiction, a party cannot use any statutory provision or Common Law principles to impose it because absence of jurisdiction is irreparable in law. The matter ends there and the only procedural duty of the Court is to strike out the matter. Umanah v. Attah (2006) 17 NWLR Pt.1009 pg 503.
In considering whether a Court has jurisdiction to entertain a matter, the Court is guided by the claim before it, by critically looking at the writ of summons and statement of claim. See Gafar v. Government of Kwara State (2007) 4 NWLR Pt.1024 pg 375, Onuorah v KRPC (2005) 6 NWLR Pt.921 pg 395, Tukur v. Government of Gongola State (1989) 4 NWLR Pt.117 pg 517 Nkuma v. Odili (2006) 6 NWLR Pt.077 pg 587.
Parties to a suit can raise the issue of jurisdiction and a Court can suo motu raise the same issue provided the parties are given the opportunity to react to the issue. Wariko v. Ade-John (1999) 9 NWLR Pt 619 pg 407, Galadima v. Tanbai (2000) 6 SC Pt.1 pg 196.
In the present case the court raised the issue of jurisdiction suo motu and invited the parties to react, which they have done.
I have held earlier that suit No LD/L66/99 is incompetent. This
22 ill has affected, the trial and eventual judgment delivered for both cases.
Suit No. ID/1006/98 is competent but having been tried alongside LD/166/99 which is incompetent the trial is therefore tainted.
The trial Judge lacked the necessary jurisdiction to try LD/166/99. Having been consolidated for trial and eventually delivered a single judgment the whole trial and the judgment remain a nullity no matter how well conducted and brilliantly decided because a defect in competence is not intrinsic but extrinsic to the entire process of adjudication. See Dapianlong v. Dariye (2007) 8 NWLR Pt.1036 Pg 332.
In the final analysis even though both suits were consolidated, but it can be separated seeing that one is incompetent and the other competent. The Court therefore holds that the trial and judgment are a nullity. The judgment and orders of the trial Judge are hereby set aside.
The Court hereby order that suit No. ID/1006/98 filed on the 30th of April, 1998 be sent back for re-trial. The Hon Chief Judge of Lagos State is to re-assign this matter to another Judge for re-trial.
Suit No LD/166/99 is hereby struck out, it being incompetent.
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This Appeal is also struck out.
?I make no order as to costs.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree.
JAMILU YAMMAMA TUKUR, J.C.A.: I agree.
Appearances
S.O. Oyewo For Appellant
Respondent Not Represented
?
24>
Appearances
S. O. OyewoFor Appellant
AND
NilFor Respondent
