➥ CASE SUMMARY OF:
Bennett Ifediorah & Ors. V. Ben Ume & Ors. (1988)
by Branham Chima.
➥ ISSUES RAISED
Grounds of law or fact;
Consolidation of suits.
➥ CASE FACT/HISTORY
Two separate suits in a land case were filed in Amawbia-Awka High Court, Anambra State as suit numbers AA/1/76 and AA/19/77 respectively. The plaintiff community in the first suit are the defendant community in the second suit, and vice versa. After the exchange of pleadings in both cases, the defendants in suit No AA/1/76 (who are plaintiffs in suit No. AA/1/77) applied by a motion on notice for the two suits to be consolidated for hearing, hearing of both cases having been fixed for the 21st, 22nd, 23rd and 24th of November, 1978. The plaintiffs in suits No. AA/1/76 (who were defendants suit No. AA/19/77) opposed the application.
After hearing the motion. the learned trial Judge, Obiesie, J. granted the application, and consolidated the two suits.
The plaintiffs appealed against the consolidation of the actions to the Court of Appeal, Enugu Division, on two grounds of appeal. Before the appeal was heard, learned Senior Advocate for the defendants, Mr. Anyamene, S.A.N., filed a notice of a preliminary objection to the appeal. The grounds of the said objection are as follows:- (1) An order of consolidation is not “decision” as defined in S.277(1) of the Constitution, being merely an administrative direction which can be reversed at any time by the Judge that gave it or any other Judge; (2) An appeal lies only from decisions of a High Court to this Court.
After hearing arguments of counsel on the preliminary objection the learned Justices of Appeal, in a unanimous decision, overruled the objection. The defendants (hereinafter called the appellants) have appealed to this Court against the ruling on two grounds of appeal.
➥ ISSUE(S) & RESOLUTION(S)
[APPEAL ALLOWED]
↪️ I. Whether the decision appealed against was a final or an interlocutory decision; and if interlocutory, what is the result where no leave is sought?
RESOLUTION: IN APPELLANT’S FAVOUR.
[AN ORDER OF CONSOLIDATION OF SUIT IS NOT A FINAL DECISION
‘Applying this test to the order of consolidation in this case, I have no doubt that the learned Judge has not disposed of any rights of the parties before him, much less finally. All he did was to make an arrangement for the convenience of the court and the parties of disposing of the two cases before him together, instead of one after another. It was an arrangement which he could resile from or reverse if at any time it appeared to him that the interests of justice so dictated. There is yet another reason why the order of consolidation could not have been final. One indisputable attribute of all final orders is that once made the judge making it becomes functus officio, so that it can only be reversed on appeal. So, if a court as in this case, before or during the course of the hearing of a case, orders something which he can review or reverse at any time, such an order cannot be final. The learned Justice of Appeal was in error to have stated at the later stage of his ruling that the order of consolidation was final. It follows that a consideration of the respondents’ right of appeal as of right under paragraph (a) of subsection (1) of Section 220 of the Constitution did not arise.’
THE GROUNDS OF APPEAL WERE NOT GROUNDS OF LAW ALONE
‘I must have to thoroughly examine each ground to see whether it is a ground of law or of fact. It appears to me that ground 1, taken together, as I should, with its particulars involves a determination of a number of issues and in fact some of them contrary to the findings of the learned Judge. Such issues include the fact that the consolidation would prejudice the respondent’s case, that the parcels of land the respondents were claiming were not the same with those the appellants were claiming – quite contrary to the findings of the learned trial Judge that the same plans were being relied upon by both parties in each of the two cases. So also is their contention in particulars 1(c) and (d) that in their view the issues in the two cases were not the same. This is contrary to the finding of the learned Judge that common questions of law and of fact were raised. So taking ground 1 as a whole there are a number of important issues of fact that must have to be examined and decided. It is the law that such a ground is one of fact or at least of mixed law and fact. See on this Ogbeche v. Onochie (supra) at page 491 – 492. See also the recent decision of this court in Paul Nwadike & Ors. v. Cletus Ibekwe & Ors. (1987) 4 N.W.L.R. 718, at p.744. The inevitable conclusion I have reached is that ground 1 is one of fact or at least of mixed law and fact.’
‘Ground 2 complains that the learned trial Judge exercised his discretion on wrong principles. I do not agree with the learned counsel for the respondents that exercise of a court’s discretion is a matter of law. I rather agree with the learned counsel for the appellants that as the principles and manner in which a judge ought to exercise his discretion in a particular case is a question of fact, depending on the facts and circumstances of each case, whether or not he exercised it rightly in any particular case is at least a question of mixed law and fact. Although the further submission of Mr. Egonu that the ground in any event lacks necessary particulars of the nature thereof if they were errors or misdirections in law as required by Order 3 Rule 2(2) of the Court of Appeal Rules, 1981, is unanswerable, I do not think it is germane to the point under consideration. Be that as it may, I am satisfied that none of the two grounds of appeal before the Court of Appeal was a ground of law alone.’
AS NO LEAVE WAS SOUGHT THE APPEAL IS INCOMPETENT
‘It follows from all I have been saying that the appellants before the Court of Appeal (respondents here) purported to appeal as of right whereas they had no such right. They could only have appealed by leave of either the High Court or of the Court of Appeal. As no leave was sought or given the appeal was incompetent.’]
.
.
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✓ DECISION:
‘The appeal, therefore, succeeds and is allowed. I hereby set aside the ruling of the Court of Appeal dated the 21st day of April, .1987,whereby it held that the appeal was properly before it and direct that the appeal be struck out. I assess costs against the respondents at N500.00 in this appeal and N500.00 in the court below.’
➥ FURTHER DICTA:
⦿ OBITER DICTA OF THE ULTIMATE COURT ON IMPORTANT POINTS ARE BINDING ON LOWER COURT
Although this opinion was given in a criminal appeal, it has been followed and applied by the Court of Appeal in many civil appeals against interlocutory decisions. See for an example Akinsola Dawodu & Anor. v. F. O. Ologundundu & Ors. (1986) 4 N.W.L.R. 104, at p.112. For, it has been held by the House of Lords in England that although what is ordinarily binding in a case is the ratio decidendi and not the obiter dictum; yet an obiter dictum by the ultimate court on an important point of law is one which is binding on and followed by all the lower courts: see W.B. Anderson & Sons Ltd. & Ors. v. Rhodes (Liverpool) Ltd. & Ors. (1967) 2 All E.R. 850. After all, a good deal of the important pronouncements of the Supreme Court in the famous case of Bronik Motors Ltd. & Anor. v. Wema Bank Ltd. (1983) 1 S.C. N.L.R. 296 was obiter. Yet it was binding on the Court of Appeal and all other courts lower down in the judicial hierarchy until the law was changed in Akinsanya v. U.B.A. Ltd. (1986) 4 N.W.L.R. 273. — Nnaemeka-Agu JSC.
⦿ TEST FOR WHETHER A DECISION IS FINAL OR INTERLOCUTORY
However, I believe that, but for what looked like a brief inter regnum under the decision in W.A. Omonuwa v. Napoleon Oshodin & Anor. (1985) 2 N.W.L.R. 924, at p. 938 – but which has now been explained away in the decision in A.M.O. Akinsanya v. United Bank for Africa Limited (1986) 4 N.W.L.R. 273, at pp. 289 – 291, the test as to whether a decision is final or interlocutory which has been preferred by authoritative decisions in this country has been consistently one which looks at the result, id est, which asks the question: “does the judgment or order, as made, finally dispose of the rights of the parties” See on this: Blay & Ors. v. Solomon (1947) 12 W.A.C.A. 117; William Ude & Ors. v. Josiah Agu & Ors. (1961) 1 All N.L.R. 65; A.M.O. Akinsanya v. U B.A. Ltd. (supra). — Nnaemeka-Agu JSC.
⦿ THE ESSENCE OF CONSOLIDATION OF SUITS
The judge, by ordering consolidation, does not give finality to any of the cases; rather he brings them under the umbrella of a single trial to decide all matters between parties or their privies in respect of the same subject matter. The essence of consolidation is to save time and costs by avoiding a multiplicity of litigations where one will suffice. If for any reason in course of trial, the court that ordered consolidation deems it expedient to deconsolidate, whether because those parties are not contesting the same issue or subject matter, or the parties are not the same and justice would demand separate trials, deconsolidation will be ordered. Consolidation does not make the judge ordering it functus officio, he continues with the hearing of the consolidated matter. The order for consolidation therefore being interlocutory can only be appealed against from the High Court to the Court of Appeal by leave. As no leave was obtained in this instance, the purported appeal is a nullity as it is not based on any lawful premise; for such an appeal cannot be filed as of right as provided by S.220(1) of the Constitution. — S.M.A. Belgore JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Nnaemeka-Agu, J.S.C.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
Mr. Egonu.
⦿ FOR THE RESPONDENT(S)
Mr. Okafor.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
