MADUKA KALU & ORS. V. CHIMA OKEREKE CHIMA & ANOR. (2007)

MADUKA KALU & ORS. V. CHIMA OKEREKE CHIMA & ANOR.

(2007)LCN/2320(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 18th day of April, 2007

CA/PH/223/94

RATIO

NATURE OF A CONSOLIDATED SUITS; RATIONALE BEHIND THE GIVING OF SEPARATE JUDGEMENTS FOR EACH OF THE SUITS CONSOLIDATED AND NOT A SINGLE JUDGMENT FOR THE CONSOLIDATED SUITS

Consolidated suits are tried and resolved in the same proceeding, but it must be noted that each suit remains separate and distinct and its own judgment must be given separately at the end of the common trial. The reasoning being that the consolidation of suits does not render evidence accepted in one suit ipso facto evidence in the other. See – Dugbo & Ors. v. Kporoaro & Ors. (1958) SCNLR 180, (1958) WNLR p. 73; Iloabuchi v. Ebigbo (2000) 8 NWLR (Pt. 668) 197, (2000) 4 SCNJ p. 46; Diab Nasr v. Complete House Enterprises (Nig.) Ltd. (1977) 5 SC p. 1. PER RHODES-VIVOUR, J.C.A.

DUTY INCUMBENT ON THE APPELLATE COURT WHERE ONE JUDGMENT WAS DELIVERED FOR THREE CONSOLIDATED SUITS INSTEAD OF THREE SEPARATE JUDGMENTS FOR EACH OF THE THREE SUITS

…it is well settled that where procedural irregularities that turn out to be fundamental, are clear on the records of appeal, as in this case where one judgment was delivered for three consolidated suits instead of three separate judgments for each of the three suits, this court should make appropriate corrective orders and directives. PER RHODES-VIVOUR, J.C.A.

CIRCUMSTANCES WHERE ACTIONS PENDING BEFORE A HIGH COURT MAY BE CONSOLIDATED BY AN ORDER OF THE COURT OR JUDGE IN CHAMBERS

It’s trite that actions pending in the High court may be consolidated by an order of the court or Judge in chambers where it appears that the issues are the same in all the actions and can therefore be properly tried and determined at one and the same time. See Order 34 rule 6(1) Imo State High Court (Civil Procedure) Rules, 1988. The main purpose of consolidation has been said to save costs and time. See Diab Nasr v. Compete Home Ent. Ltd. (1977) 5 SC 1 at 11 PER SAULAWA, J.C.A.

WHAT MUST BE ESTABLISHED FOR AN ERROR OF A TRIAL COURT TO RESULT IN THE IMPEACHMENT OR SETTING ASIDE OF ITS JUDGMENT ON APPEAL

it’s a settled principle of law that it is not every error of a trial court that must result in the impeachment or setting aside thereof. It must be established that the error has occasioned a miscarriage of justice. See Udeze & Ors. v. Chidebe & Ors. (1990) 1 NWLR (Pt. 125) 141. PER SAULAWA, J.C.A.

Justices

SULEIMAN GALADIMA Justice of The Court of Appeal of Nigeria

BODE RHODES-VIVOUR Justice of The Court of Appeal of Nigeria

IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria

Between

1. MADUKA KALU
2. OKORONKWO OJI
3. IGWE IGWE
4. SAM IMEKE
5. CHUKWUEKE ANYIM
6. OKORONKWO IHEKE (For themselves and as representing Ndi Obuchie Family of Amankalu, Alayi)Appellant(s)

AND

1. CHIMA OKEREKE CHIMA
2. OGBONNAYA ONWUCHEKWA
(For themselves and as representing Umuokpo Family of Amankalu Alayi) Respondent

RHODES-VIVOUR, J.C.A. (Delivering the Leading Judgment): This is a land case. Three suits to wit: HU/26/76, HU/45/76, and HU/52/79 were consolidated and heard by D.E. Njiribeako, J. sitting in the Imo State High Court, Umuahia Judicial Division.
The respondents were the plaintiffs in suits Nos. HU/26/76 and HU/52/79 and the defendants in suits No. HU/45/76. The dispute was land in Amankalu, Alayi Bende Local Government Area within the Umuahia Judicial Division.
In the three suits consolidated both sides claim declaration that they are the customary occupant of the land in dispute, special and general damages for trespass and injunction.
After hearing the parties the learned trial Judge entered judgment in favour of the plaintiff/respondents.
Dissatisfied with the judgment of the learned trial Judge the defendants appealed to this court.
Briefs of argument were duly filed and exchanged by counsel representing the parties in this appeal.
In his brief, learned counsel for the appellant formulated four issues for determination:
1. Whether the judgment over suits HU/26/76, HU/45/76 and HU/52/79 as consolidated is valid when only suits HU/26/76 and HU/45/76, really consolidated.
2. Whether the Asukwu land the plaintiffs showed in their plan, exh. A, is the same area of land as that involved in the previous Native or Customary Court cases, in particular exhibit D in C.S. 154/52.
3. Whether the learned trial Judge correctly evaluated the respective cases of the parties based on their pleadings and evidence before him.
4. Whether the learned trial Judge correctly directed himself on the law of res judicata.
Learned counsel for the respondent also formulated four issues which are similar to the issues formulated by the appellant. They read:
1. Whether suits No. HU/26/76, HU/45/76, and HU/52/79 were validly consolidated, heard and determined by the judgment of the Honourable Court.
2. Whether the Asukwu land which the respondents (the plaintiffs) showed in their survey plan, exhibit A in these proceedings is the same as that involved in the previous cases in the Alayi Native Court and the D.O’s Appeal Court between the parties with particular reference to exhibits ‘C’, ‘D’ and ‘E’ (case between the respondents and Amato people)
3. Whether the Honourable trial Judge correctly evaluated the cases presented by the parties based on their pleadings and evidence before him.
4. Whether the learned trial Judge correctly applied the doctrine of estoppel per rem judicatam based on exhibits ‘C’ and ‘B’ in the proceedings.
On 23/1/07 at the hearing, learned counsel for the appellants, C.N. Achinuhu, Esq. adopted his brief dated on 9/6/95 and urged us to allow the appeal.
Learned counsel for the respondent, S. Uzodinma, Esq. adopted his brief filed on 11/9/95 and urged us to uphold the judgment of the trial court and dismiss the appeal.
In the court below three suits were consolidated. They are suits Nos. HU/26/76, HU/45/76, and HU/52/79. Page 102 of the record of appeal is clear that the said suits were consolidated. It reads:-
” … By consent of counsel on both sides, the three suits were consolidated because the land in dispute is the same although called by different names a pattern which is all too familiar on land cases.”
On 23/5/90 the learned trial Judge delivered judgment on the consolidated suits.
I must now, highlight how judgment in consolidated suits are delivered and the grave error of the learned trial Judge delivering only one judgment.
Consolidated suits are tried and resolved in the same proceeding, but it must be noted that each suit remains separate and distinct and its own judgment must be given separately at the end of the common trial. The reasoning being that the consolidation of suits does not render evidence accepted in one suit ipso facto evidence in the other. See – Dugbo & Ors. v. Kporoaro & Ors. (1958) SCNLR 180, (1958) WNLR p. 73; Iloabuchi v. Ebigbo (2000) 8 NWLR (Pt. 668) 197, (2000) 4 SCNJ p. 46; Diab Nasr v. Complete House Enterprises (Nig.) Ltd. (1977) 5 SC p. 1.
My Lords, it is well settled that where procedural irregularities that turn out to be fundamental, are clear on the records of appeal, as in this case where one judgment was delivered for three consolidated suits instead of three separate judgments for each of the three suits, this court should make appropriate corrective orders and directives. Accordingly the case is hereby remitted to the Chief Judge of Abia State for trial de novo.
There shall be no order on costs.

GALADIMA, J.C.A.: I have had the privilege of reading the draft of my learned brother, Rhodes-Vivour, JCA just delivered. I agree with him that there are some fundamental procedural irregularities in this case, which call for remittance of this case to the court below for a re-trial de novo.
The pith and precision of this appeal turns out to be an issue of the consolidated suits namely, HU/26/76, HU/45/76 and HU/52/79 at the court below. In the three suits both sides claimed declaration that they were the customary occupants of the land situate in Amankalu, Alayi, in Bende Local Government Area of Imo, State. On 23/5/90 the learned trial Judge having heard the parties delivered only one judgment on the consolidated suits. This is the grave error. Consolidation of actions is the process whereby two or more distinct actions pending in the same court are by order of court joined and tried together at the same time. The actions, though separate and distinct, are tried simultaneously in the same proceeding. However, each suit remains a separate and distinct action and must have its own judgment given separately at the end of the common trial. It is for the convenience of trial. It is to save time and cost that would have been involved if the same issues have to be dealt with in a second trial with the same evidence taken allover again. This fusion of the suit is not indissoluble. After the judgment any party aggrieved by the decision as it affects him in one of the consolidated cases can appeal against it unless his complaints on appeal also cover the other cases. See Nasr v. C.H.E. (Nig.) Ltd. (1977) 5 SC 1; Obiekweife v. Unumma (1957) SCNLR 331; Toriola v. Williams (1982) 7 SC 27; Kutse v. Bakfur (1994) 4 NWLR (Pt. 337) 196 and Alaribe v. Nwankpa (1999) 4 NWLR (Pt. 600) 551 at 560.
In the instant case the learned trial Judge erred when he fused the cases and delivered a single judgment in only one of the three cases leaving out the others. As I have said for this reason I also agree that the consolidated suits be and hereby remitted to the Hon. Chief Judge of Abia State for retrial before another Judge.
I also make no order as to costs.

SAULAWA, J.C.A.: I have had the privilege of reading the draft of the lead judgment prepared and delivered by my learned brother, Bode Rhodes-Vivour, JCA. I agreed with the reasoning and conclusion reached therein.
It’s instructive that the appellant and the respondents have equally formulated four issues each in their respective briefs of argument which have been copiously reproduced in the lead judgment. Salient of the four issues raised in the respective briers of the parties are the 1st issues thereof which are to the following effect:-
“1. Whether the judgment over suits HU/26/76, HU/45/76 and HU/52/79 as consolidated is valid when only suits HU/26/7 and HU/45/76 (were) really consolidated. (Appellants’ issues)
1. Whether suit Nos. HU26/76, HU45/7 and HU52/79 were validly consolidated heard and determined by the judgment of the Honourable Court. (Respondents’ issues).”
The judgment of the trial court is contained at pages 101 – 133 of the record of appeal accorded an ample albeit very critical consideration upon the circumstances surrounding the appeal, the briefs or argument of the parties the authorities referred to therein as well as the entire record of appeal. It’s common ground that of the 3 suits in question only No. HU/26/7 and HU/45/76 could be said for certain to have been consolidated. There is no certainty, however, that the 3rd suit was part of that consolidation. What more, the respondents’ learned counsel has attributed the omission of that suit’s No. (HU/52/79) in record of appeal to what he termed –
“In advertence in which the parties and their counsel ought to have been taken to have acquiesced since the purpose of the consolidation was to determine the rights of the parties in the existing suits as consolidated.” See page 4 paragraph 5.06 of the respondents brief.
It’s trite that actions pending in the High court may be consolidated by an order of the court or Judge in chambers where it appears that the issues are the same in all the actions and can therefore be properly tried and determined at one and the same time. See Order 34 rule 6(1) Imo State High Court (Civil Procedure) Rules, 1988. The main purpose of consolidation has been said to save costs and time. See Diab Nasr v. Compete Home Ent. Ltd. (1977) 5 SC 1 at 11 It’s a well settled principle of law that where two or more suits, are consolidated in an action, each suit retains its individual and separate existence nonetheless. However, at the conclusion of the trial, judgment should be given in respect of each suit. That’s so far the general rule. See Diab Nasr case (supra). However, there are exceptions to the above general rule. See Attah & Ors. v. Nnacho & Ors. (1965) NMLR 28 in which the Supreme Court held inter thus:
“We are unable to accept this submission in the form in which it has been put to us.
… As already observed, the parties in this appeal took very active part throughout the trial without raising any objection, and it is our view that it cannot in those circumstances be seriously argued that any miscarriage of justice occurred, or that the procedure adopted by the learned Judge was in error in law.”
The above Supreme Court’s authority presupposes the fact that each case must be decided on the basis of its own peculiar facts and circumstances and thus its not a contradiction of the above general principle. Thus, it’s a settled principle of law that it is not every error of a trial court that must result in the impeachment or setting aside thereof. It must be established that the error has occasioned a miscarriage of justice. See Udeze & Ors. v. Chidebe & Ors. (1990) 1 NWLR (Pt. 125) 141.
Hence, in the light of the above postulations and the reasoning and conclusion reached in the lead judgment, I am likewise of the considered view that the appeal has merit and its accordingly allowed.
I abide by the consequential order contained in lead judgment remitting the case to the Chief Judge of Abia State for trial de novo.
I make no order as to costs.
Appeal allowed.
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