Chief Ujile D. Ngere & Anor V. Chief Job William Okuruket ‘XIV’ & 3 Ors

Areas of Law

ACTION, APPEAL, LAW OF EVIDENCE, PRACTICE AND PROCEDURE, WORDS AND PHRASES

Summary of Facts
This is an application by the Appellants/Applicants praying the court for a consolidation of Appeal No: SC.54/2012 and Appeal No: SC.335/2012. Both appeals are between the same parties and the subject matter of the dispute is the same, however, where Appeal No. SC.335/2012 is challenging the order of retrial made by the Court of Appeal, Appeal No. SC.54/2012 arose from the judgment resulting from the re-trial ordered by the Court of Appeal.

Held
Application Granted.

Issue for Determination
None

Rationes
CONSOLIDATED APPEAL – DEFINITION OF CONSOLIDATED APPEAL
“Consolidation, generally, means to make solid or firm, to unite, compress or pack together and form into a more compact mass, body, or system.While defining “Consolidated appeal,” Campbell Black in his Black’s Law Dictionary, Sixth Edition, page 308, states:
“If two or more persons are entitled to appeal from a judgment or order of a district court and their interests are such as to make joinder practicable, they may file a joint notice of appeal, or may join in appeal after filing separate timely notices of appeal, and they may thereafter proceed on appeal as a single appellant. Appeals may be consolidated by order of the Court of Appeals upon its own motion or upon a motion of a party, or by stipulation of the parties to the several appeals.” PER I. T. MUHAMMAD, J.S.C

MERGER – MEANING OF MERGER OR FUSION
“Equally, merger or fusion is the process of absorption of one thing or right into another such as where a case merges or fuses into another.” PER I. T. MUHAMMAD, J.S.C

CONSOLIDATION OF ACTIONS – MEANING OF CONSOLIDATION OF ACTIONS
“I came across a captivating definition of “consolidation,” by Musdapher, JCA (as he then was), in the case of Kutse v. Balefur ( 1994)4 NWLR (Pt.337) 196 at page 209 E – G, where he, inter alia, stated:
“Now 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. Although, consolidated actions are tried and determined in the same proceeding, each remains a separate and distinct action and has its own judgment given separately at the end of the common trial.” PER I. T. MUHAMMAD, J.S.C

CONSOLIDATION OF ACTIONS – PURPOSE OF CONSOLIDATION OF ACTIONS
“The main aim of consolidation has been spelt out by this court in the case of NASR V. C.H.E Ltd. (1977) 5 SC 11. “The main purpose of consolidation, it has been said, is to save costs and time, and therefore 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.See Payne V. British Time Recorder Co. (1921) 2 KB 16. Per Irikefe, JSC at para 11 thereof.
See also: Lediju v. Odulaja (1943) 17 NLR 15.” PER I. T. MUHAMMAD, J.S.C

CONSOLIDATION OF ACTIONS – CONDITIONS THAT MUST BE FULFILLED BEFORE AN APPLICATION FOR CONSOLIDATION CAN BE GRANTED.
“Although the grant or refusal of an application for consolidation is purely at the discretion of a Judge, there are general conditions, in addition to any that may be laid by Rules of Court in a particular situation, that may be satisfied before the exercise of such discretion:
a. the cases/suits to be consolidated must be pending in the same court
b. there is/are some common question(s) of law or fact bearing sufficient importance in proportion to the rest of the subject matter(s) of the actions to render it desirable that all the suits/cases sought to be consolidated be disposed of at the same time;
c. the same common question(s) of law or fact in each of the actions could conveniently be disposed of in the same proceeding;
d. the right to relief claimed in each action arises out of the same transaction or series of transactions, and or
e. for any other reason it is desirable to order consolidation.
The above requirements or conditions, were earlier applied by this Court in several appeals such as appeals Nos SC.53/1981: SC.55/1981 andSC.S7l1981. See also (1982) 1 – 2 SC 13; Nasr v. C. H. E. (Nig.) Ltd (supra), Obiekweife v. Unumma (1957) SCNR 331; Toriola v. Williams (1982) 7 SC 27.” PER I. T. MUHAMMAD, J.S.C

CONSOLIDATION OF SUITS – CONSOLIDATION OF SUITS IS MADE FOR PURPOSES OF EXPEDIENCY AND CONVENIENCE.
“Thus, consolidation of suits/cases is generally made for expediency and convenience such that suits/cases having same and common characteristics of law or facts or arising from common transaction may be heard and determined at the same time in order to avoid multiplicity of actions and to economise time and costs. See: Ifediora v Ume (1988) 2 NWLR (Pt.74) 5.” PER I. T. MUHAMMAD, J.S.C

CONSOLIDATION OF ACTIONS – INSTANCES WHERE AN APPLICATION FOR CONSOLIDATION WILL BE DENIED.
“However, where from the nature of the claims, the issues and the constitution of the parties in the actions, consolidation will cause confusion to the question(s) in controversy or will cause embarrassment or injustice to one of the parties, it will not be ordered. This principle holds true even where the parties have consented to the consolidation. See: Balogun v. Lagos Executive Development Board (1963) LLR 13; Enigwe v. Akaigwe (1992) 2 NWLR (Pt.225) 505.” PER I. T. MUHAMMAD, J.S.C

“ I think, I should mention on equal footing, that where from the nature of the claims/reliefs sought, the issues or the constitution of the parties in the actions, consolidation will cause intractable confusion to the question(s) in controversy, or it will cause embarrassment or injustice to one of the parties, then it will not be ordered. Further a court will not consolidate actions which have no common question of law or actions where the rights or reliefs claimed do not relate to the same subject matter. This principle of law holds true even where the parties have consented to the consolidation. See: Balogun v. Lagos Executive Development Board (supra); Enigwe v. Akaigwe (supra).” PER I. T. MUHAMMAD, J.S.C

BURDEN OF PROOF – HE WHO ASSERTS MUST PROVE.
“The law is still very sound and clear that he who asserts must prove (Section 135(1) of the Evidence Act).” PER I. T. MUHAMMAD, J.S.C

CONSOLIDATION OF SUITS – CONDITIONS THAT WOULD WARRANT THE COURT TO ORDER CONSOLIDATION
“Now, consolidation of suits is usually granted if a court is satisfied that the issues in the suits sought to be consolidated can be resolved in one joint proceeding rather than in separate proceeding. The decision to order consolidation is arrived at if the court is satisfied that some common questions of law or fact arise in both or all of the causes or matters, or the rights to relief are claimed in respect of or arise out of the same transactions or for some other reason it is desirable to make an order under the rules of court. See lloabuchi v Ebigbo (2000) 8 NWIR (Pt 668) 197, Okwuagbala v lkwueme(2010) 19 NWIR (Pt 1226) 54, Diab Nasr v Complete Home Enterprises Nig Ltd (1977) 5 SC (Reprint) l, Payne v British Time Recorder Co. (1921)2 KB P 16.” PER J. I. OKORO, J.S.CStatute Referred to:

None