MAXWELL ARINZE CHIDOLUE v. MARTIN OGBUNEBE & ANOR
(2018)LCN/11831(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 4th day of July, 2018
CA/E/369/2014
RATIO
COURT AND PROCEDURE: A CONSOLIDATED SUITS
“It is settled that though consolidated suits are tried and determined in the same proceedings so as to avoid multiplicity of actions, save time and cost, each of the suits remains a separate and distinct action. That is why the law requires that separate consideration and judgment be given in respect of each suit at the end of common trial. See NGERE & ANOR V OKURUKET & ORS (SUPRA), ENIGWE & ORS. V AKAIGWE & ORS (1992) LPELR 1145 (SC) AT 37 (BC), NWAEZE & ANOR V EZE & ORS (1999) LPELR 6606 (CA) AT 9 (DG) and 12 13 (GA). IN CHIKERE & ORS V OKEGBE & ORS (2000) LPELR 847 (SC) AT 15 16 (GB)” PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.
JUSTICES:
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
MISITURA OMODERE BOLAJI-YUSUFF Justice of The Court of Appeal of Nigeria
Between
MAXWELL ARINZE CHIDOLUE – Appellant(s)
AND
1. MARTIN OGBUNEBE
2. URUALLA (OSHA)
MULTIPURPOSE CO-OPERATIVE SOCIETY LTD – Respondent(s)
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A. (Delivering the Leading Judgment): Martin Ogbunebe, the 1st respondent in this appeal instituted suit no. 0/60/2012 against Maxwell Arinze Chidolue, the appellant herein at the High Court of Anambra State, Onitsha Judicial Division and claimed the following reliefs:
(a) Declaration that the plaintiff is the allottee and/or holder of a right of occupancy of half stall No. R2/772, (situate at Main Market Onitsha) and therefore entitled to immediate possession of same.
(b) A perpetual injunction to restrain the defendant, his agents, servants, privies, etc from continuing to occupy and/or make use of the said stall.
(c) An order for the immediate delivery up to the plaintiff of the said half stall No. R2/772 situate at Main Market Onitsha.
(d) N2,000,000 general damages for the defendants unlawful detention and/or conversion of the said stall.
The appellant instituted suit no 0/67/2012 in the same High Court against Urualla (Osha) Multipurpose Co-operative Society Ltd. the 2nd respondent in this appeal and claimed the following reliefs:
1. A declaration that the defendant is not entitled to the sum of N3,000,000.00 (Three Million Naira) from the plaintiff as claimed.
2. A declaration that any purported sale or purchase of the said half stall No. R2/772 by the defendant is illegal, ultra vires, null and void.
3. An order restraining the defendants from selling the said half stall No. R2/772 or setting aside any purported sale of the said half stall by the defendants.
4. An order restraining the defendants, their agents, privies or servants or otherwise however from forcefully or otherwise seizing, taking control of and selling the said stall No. R2/772 used by the plaintiff as collateral for the loan.
The two suits were consolidated and tried together. The learned trial judge delivered judgment in each suit separately, on 19/5/2014. The judgment in suit no. 0/60/2012 is on pages 243 258 of the record of appeal. The judgment in respect of suit no. 0/67/2012 is on pages 259 268 of the record of appeal.
In suit no. 0/60/2012, the Court entered judgment in favour of the 1st respondent as follows:
Conclusively, it is found that notwithstanding the plaintiffs failure to prove arbitration by OMATU that the plaintiff proved his case. The said arbitration could not have been better evidence than that contained in Exhibit B which clearly proved that the ownership of the defendant to the disputed property ended on 28/02/09. In view of the various findings made above in plaintiffs favour, judgment is hereby entered to the plaintiff with N250,000.00 general damages against the defendant for the unlawful detention/and or conversion of the said stall.
In suit no. 0/67/2012, the Court entered judgment against the appellant as follows:
There is totally no merit in the plaintiffs case. It is a clear exercise in seeking legality to violation of the plaintiffs contract with the defendant. This case is as a result dismissed with cost of N100,000.00.
The typographical/clerical error on the face of the judgment in suit no. 0/67/2012 in respect of the parties to the suit was corrected by an order of the Court made on 4/11/2014 pursuant to the application of the 2nd respondent. See the additional record of appeal.
Being dissatisfied with the judgment in the two cases, the appellant filed one notice of appeal on 20/5/14. On 17/2/2015, the appellant filed an application for leave to argue additional grounds of appeal and an order extending the time to file his brief of argument. On 18/2/2015, the appellant was granted leave to argue additional grounds of appeal and an order to file an amended notice of appeal incorporating the additional grounds of appeal within 14 days from that date. The appellant failed to file an amended notice of appeal within the time stipulated by the Court. He filed another motion on 18/4/2018 seeking an extension of time to file amended notice of appeal. The motion was withdrawn and struck out on the same day for being incompetent. This appeal will therefore be determined on the basis of the notice of appeal filed on 20/5/2015. The six (6) grounds of appeal in that notice without their particulars are set out hereunder:
GROUND 1 ERROR OF LAW:
The lower Court erred in law when he held that with Exh. B the respondent can ipso facto validly and legally transfer/change the ownership of the stall at the local government council Onitsha or deal with same without written consent of the appellant authorizing the transfer.
GROUND 2 ERROR OF LAW:
The lower Court erred in law when he held that the respondents need not obtain any other valid order of Court before dealing with the said stall as they please the proviso (sic)in Exh. B.
GROUND 3 ERROR OF LAW:
The lower Court erred in law when he held that affidavit of change of ownership Exh A10 whether made by the appellant or not is of no moment.
GROUND 4 ERROR OF LAW:
The lower Court erred in law when he held that the appellant having alleged fraud in Exh. A10 need to prove same beyond reasonable doubt.
GROUND 5 ERROR OF LAW:
The lower Court erred in law when he held that the appellant having abandoned his written statement on oath dated 16/5/2012 accompanying the statement of claim in suit No. 0/67/2012 is deemed to have abandoned the statement of claim or that the statement of claim would also collapse with it.
GROUND 6 ERROR OF LAW:
The judgments in the consolidated suits are against the weight of evidence.
The appellants brief of argument was filed on 4/3/2015. It was deemed as properly filed and served on 18/4/2018 with effect from 4/3/2015. The respondents brief of argument was filed on 13/3/2015.
The respondent filed a notice of preliminary objection to the hearing of the appeal contending that:
(a) That the notice of appeal as constituted is grossly incompetent and should be struck out.
(b) That issues 1&2, the arguments proffered there under, and grounds 1, 2 &3 of the notice and grounds of appeal are equally incompetent and should be struck out.
The grounds of the said objection are as follows:
(1) Suit No. 0/60/12 & 0/67/12 were consolidated, tried together and separate judgments delivered thereon. Rather than file two separate notices of appeal only one was filed against the two judgments.
(2) Paragraph 2 of the notice of appeal simply said that part of the decision appealed against is the whole decision without specifying the decision. Is it the whole decision in 0/60/12 or in 0/67/12 or in both?
(3) Also, grounds 1, 2, 3, 4 and 5 did not specify from which of the decisions they were drafted from.
(4) Issues 1 and 2 of which were said to have been formulated from grounds 1, 2 & 3 of the notice of appeal contained new issues which the Court below did not make a pronouncement on. No leave was sought and obtained before raising them at the Court of Appeal.
The argument in support of the objection was incorporated in the respondents brief of argument. It is the contention of the respondent that this appeal is incompetent in that only one notice of appeal was filed in respect of the two consolidated suits contrary to the requirement that two separate notices should be filed because each of the consolidated suits retains a separate and individual existence. He referred to NWAEZE V EZE (1999) 3 NWLR (PT. 595) AT 417 418 (D G). He submitted that the notice of appeal falls short of the mandatory provisions of Order 6 Rule 2 (1) of the Court of Appeal Rules, 2011 now Order 7 Rule 2(1) of the Court of Appeal Rules, 2016.
In addition to the above contentions, the respondent also contended that grounds 1, 2 and 3 of the appeal are incompetent because they contain a fresh point which was not taken before the trial Court and was not pronounced upon.
Counsel submitted that it is trite that an appellate Court will not allow a fresh point to be taken before it without leave of Court if such a point was not pronounced upon by the Courts below. On when the Court will grant leave to argue a fresh point on appeal, counsel referred to ARAKA V EJEAGWU (2000) 12 SC (PT. 1) 99. OKENWA V MIL. GOV. IMO STATE (1996)6 NWLR (PT. 455) 394 AT 408(AD). It is the further contention of the respondent that issues 1 and 2 which were said to have been formulated from grounds 1, 2 and 3 of the grounds of appeal do not arise from those grounds as claimed by the appellants. He urged the Court to strike out the appeal.
The appellant did not file any response or reply to the respondents preliminary objection and did not even make any reference to it when the appeal was argued.
RESOLUTION:
Consolidation of two suits is the process by which two or more distinct and separate actions pending in the same Court are by order of Court joined and tried together at the same time. See NGERE & ANOR V OKURUKET & ORS (2015) LPELR 24749 (SC) AT 15 (B- F).
It is settled that though consolidated suits are tried and determined in the same proceedings so as to avoid multiplicity of actions, save time and cost, each of the suits remains a separate and distinct action. That is why the law requires that separate consideration and judgment be given in respect of each suit at the end of common trial. See NGERE & ANOR V OKURUKET & ORS (SUPRA), ENIGWE & ORS. V AKAIGWE & ORS (1992) LPELR 1145 (SC) AT 37 (BC), NWAEZE & ANOR V EZE & ORS (1999) LPELR 6606 (CA) AT 9 (DG) and 12 13 (GA). IN CHIKERE & ORS V OKEGBE & ORS (2000) LPELR 847 (SC) AT 15 16 (GB), the Supreme Court stated the nature of appeal from consolidated suits as follows:
When an appeal is taken from the decision in consolidated suits and the notice of appeal has indicated that the appeal is against the whole decision, the appeal must be taken as having been from the decision as it affects the totality of the consolidated suits. Where, however, as in this case, the notice of appeal in the Court below indicate that the part of the decision appealed from is that which related to one of the consolidated suits, the appellant cannot challenge any other part of the decision, without first amending his notice of appeal.
The clear position of the Court based on the plethora of cases on the effect of consolidation of two or more cases is that consolidated suits still retain their separate and distinct identity for all purposes including appeal. See BANK OF THE NORTH LTD V SALEH (1999) NWLR (PT. 618) 331, NWAEZE & ANOR V EZE & ORS (1999) LPELR 6606.
The issue in this case is whether the appellant herein ought to have filed two notices of appeal and not one. This Court considered that issue in NGADIUKWU V MOGHALU & ORS (2014) LPELR 24366 (CA) AT 9 12 (DD) and held as follows per AGIM, JCA:
It is settled law that the legal consequences of the consolidation of two or more suits is that it only unifies their trial in the sense that the same body of evidence is used to determine the same issues, but, it does not destroy the separate existence of the suits and each must therefore be determined and pronounced upon separately.
See the decision of this Court in OGIDI & ORS v. OKOLI & ORS (2014) LPELR- 22925 following the Supreme Court decisions in NASR v. COMPLETE HOME ENTERPRISE (NIG) LTD (1977) 5 SC (Reprint) 1 and IFEDIORAH v. UME (1988) NWLR (Pt. 74) 95. The implication of this position is that the judgment in the consolidated suits is a composite judgment consisting of two or more judgments as the case may be. If the unity of the suits ends after the evidence, and may be the evaluation of same, and their distinctness resumes at the moment of decision, with a separate decision for each suit, how should a party who is aggrieved by the decisions in each suit appeal? Should he or she appeal by filing a single notice of appeal against the composite judgment or by filing separate notices of appeal against the decision in each suit?
This Court in BANK OF THE NORTH LTD v. SALEH (1999) 9 NWLR (Pt. 618) 331 held per Edozie JCA (as he then was) that “the position of the law is that consolidation merely unites 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.
See Accra Perfumery Company Limited v. Allen Rolling Thomas, etc 12 WACA 160. Accordingly judgment and costs are separately entered in each case. Similarly, appeal and execution are separately entered and made in each case.” This Court again in NWAEZE & ANOR v. EZE & ORS (1999) 3 NWLR (Pt. 595) OR (1999) LPELR-6606 held per Atinuke Ige, JCA that “the appellant is supposed to file 2 separate notices, one for each decision on each petition.” For this and other reasons the single notice of appeal filed against the judgment in the consolidated petition was held in that case to be incompetent even though it is expressed therein that it is an appeal against the whole decision.
The Supreme Court decision in CHIKERE v. OKEGBE (supra) relied on by Learned Counsel for the appellant stated the nature of appeal from consolidated suits thus “when an appeal is taken from the decision in consolidated suits and the notice of appeal has indicated that the appeal is against the whole decision, the appeal must be taken as having been from the decision as it affects the totality of the consolidated suits. Where, however, as in this case, the notice of appeal in the Court below indicated that the part of the decision appealed from is that which related to one of the consolidated suits, the appellant cannot challenge any other part of the decision, without first amending his notice of appeal. “The decision did not state clearly that an appeal against the decision in each of the consolidated suits can competently be made by filing a single notice against the composite judgment. However, this is an obvious implication of that decision.
Therefore in the light of the above quoted holding of the Supreme Court, an appeal against the decisions in the consolidated suit can be validly commenced by the filing of a single notice of appeal which expresses therein that the appeal is against the “whole decision” in the judgment. The notice of appeal commencing this appeal is therefore competent.
In the case of CHIKERE V OKEGBE (2000) LPELR 847 (SC) AT 15 16 (GB), relied on in the above decision, a composite judgment wherein all the issues in the two consolidated cases were jointly considered but separate pronouncements and orders were made in respect of each of the consolidated suits.
In NGADIUKWU V MOGHALU a composite judgment was also delivered. The single notice of appeal filed in each of those cases was held to be valid because one composite judgment was delivered in respect of two consolidated cases.
From the plethora of authorities on the effect of consolidation of cases and how the Court should render its decision or judgment in consolidate suits tried together, the following principles have clearly emerged:
(1) Separate decision or pronouncement must be made in respect of each of the consolidated suits.
(2) The decision in respect of each consolidated suit can be given in one composite judgment or two separate judgments depending on the facts and issues in each of the consolidated suits.
(3) The fact that one single judgment is delivered in consolidated suits will not automatically render the judgment invalid, the party complaining must show that failure to render two separate judgments or decision has occasioned a miscarriage of justice.
See NKUMA V ODILI (2006) LPELR 2047 (SC) AT 13 (AB) U.B.A V ETIABA & ORS (2008) LPELR 5039 (CA) AT 33 034 (CA).
I am of the firm view that the decision of this Court in NGADIUKWU V MOGHALU (SUPRA) will apply to an appeal from consolidated suits where one composite judgment is delivered in respect the two or more consolidated suits. Where a considered and separate judgment based on different considerations, evaluation and reasoning is delivered in respect of each consolidate suit, separate notices of appeal must be filed. The two appeals may be consolidate where appropriate and in which case, the appellate Court would also deliver two separate judgments. See INEC V NYAKO & ORS (CONCOLIDATED) (2011) LPELR 4314 (CA) AT 18 (DG). In the instant case where two considered and separate judgments were delivered, a separate notice of appeal in respect of each judgment ought to have been filed by the appellant. The appellant having filed one notice of appeal in respect the two separate judgments, the notice of appeal is incompetent.
In the eyes of the law, there is no appeal before this Court and the Court has no jurisdiction to entertain an incompetent appeal. See IFEAJUNA V IFEAJUNA (1998) LPELR 6181 (CA) AT 17 (EB). N.I.W.A.V.S.P.D.C. NIG LTD (2006) LPELR 7692 (CA) AT 19 20 (DA). UWEH V PDP & ORS.
For the above reasons, this appeal no. CA/E/369/2014 is hereby struck out for being incompetent. Parties shall bear their own costs.
IGNATIUS IGWE AGUBE, J.C.A.: The draft of the lead judgment delivered by my learned brother MISITURA OMODERE BOLAJI-YUSUFF, JCA was made available to me before now. I am in tandem with the reasoning and conclusion reached therein to the effect that the instant Appeal is incompetent and therefore is struck out. Parties shall bear their own costs.
JOSEPH TINE TUR, J.C.A.: I agree
Appearances:
D. O. Nwankwo For Appellant(s)
C. C. Okeke with him, N. R. Owoh-Ohaa For Respondent(s)
