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Order for consolidation will not be granted in a case where it causes injustice

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IN THE SUPREME COURT OF NIGERIA
HOLDEN AT ABUJA
ON FRIDAY, THE 5TH DAY OF JUNE, 2015
BEFORE THEIR LORDSHIPS
IBRAHIM T. MUHAMMAD JUSTICE, SUPREME COURT
BODE RHODES-VIVOUR JUSTICE, SUPREME COURT
NWALI S. NGWUTA JUSTICE, SUPREME COURT
OLUKAYODE ARIWOOLA JUSTICE, SUPREME COURT
JOHN I. OKORO JUSTICE, SUPREME COURT
SC. 54/2012
SC.335/2012
BETWEEN:
1. CHIEF UJILE D. NGERE)
2. A. W. MBOSOWO) …..APPELLANTS/ APPLICANTS
(For themselves and as
Representatives of the entire People
Of Ngere Family of Ngo Town)
AND
1. CHIEF JOB WILLIAM OKURUKET XIV
2. PASTOR FINEFACE AARON OKURUKET
3.NNADI PAULIBOTILE…………… RESPONDENTS
4. SIMEON AYAYI
(For themselves and as
Representatives of the entire
People of Unwule Royal
House of Ngo Town)

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. So held the Supreme Court Holden in Abuja in a unanimous Ruling delivered by His lordship, Ibrahim T. Muhammed, with his learned brothers Bode Rhodes-Vivour, Nwalis Ngwuta, Olukayode Ariwoola and John I. Okoro, JJSC concurring while allowing the appeal. The parties were represented by A. Akoni SAN, (with Ben- Omotehninse and L. Dunkwu), for the Appellants/Applicants, U. N. Udechukwu SAN ( with F. A. Eneawaji,A. S. Akingbade), for the Respondents.

RULING

This is an application by the Applicants who are the Appellants in Appeal No. SC.54/2012 as well as in Appeal No. SC.335/2012. The Respondents to the application herein, are same Respondents in the aforementioned appeals.
In the application on hand, the Applicants ask this court to grant the following relief:
“An Order directing that Appeals No. SC.54/2012 (Chief Ujile D. Ngere & Anor. v. Chief Job William Okuruket ‘XIV” and Anor.) and SC.335/2012 (Chief Ujile D. Ngere & Anor. v. Chief Job William Okuruket ‘XIV” & Ors.) which are currently pending before this honourable court be heard and determined together on the merits; And for such further order(s) as this honourable court may deem fit to make in the circumstances of this case.”

The Applicants furnished grounds in support of the application as follows:

a. “The two appeals originate from a dispute between the Appellants and the Respondents as to the rightful person/family entitled to occupy the traditional chieftaincy stool of the
Ngo community in Andoni, Rivers States designated in local dialect as Okan Ama of Ngo since sometime before or around 1970.

b. The honourable court had granted an order for accelerated hearing in respect of Appeal No. SC.54/2012 on 18th February, 2014 and the said appeal has been fixed for 28th October, 2014 for hearing.

c. Appeal No. SC.54/2012 is challenging proceedings which emanated from the order of re-trial made by the lower court in CA/PH/ 210/1990 (and which proceedings led to a retrial at the trial court and an appeal against that trial in CA/PH/240/2007).

d. Whereas Appeal No. SC.335/2012 challenging the order of re-trial itself made by the lower court in CA/PH/210/1990. So whilst they are distinct appeals challenging distinct decisions of the Court of Appeal, the appeals are inextricably interrelated and interwoven.

e. Indeed, the determination of the substantive issues raised in Appeal No. SC.335/2012 may conclusively determine the instant Appeal No. SC. 54/2012,

f. In the light of the foregoing, it is therefore in the interest of smooth, convenient and efficient administration of justice to hear and determine both Appeals Nos. SC.54/2012 and SC.335/2012 together, in order to enable the honourable court conveniently determine the issues relating to the said appeals and avert the possibility of delivering conflicting judgments in respect of both appeals.

g. Both parties to the appeals have duly filed and exchanged their briefs of arguments in respect of the two appeals.

h. The Respondents cannot be prejudiced by the grant of this application in any manner whatsoever”

Moving the motion, learned senior counsel for the Applicant, Mr. Akoni, stated that it will be in the interest and smooth administration of justice to hear both appeals together. The underlying dispute between the parties is the same which relates to the leadership of a community. The learned SAN stated further that SC.335/2012 challenges the order of re-trial made by the Court of Appeal in its judgment of 7/07/94. SC.54/2012, on the other hand, is against the judgment of the Court of Appeal in respect of the re-trial conducted by the trial court. The learned SAN stated that the disposal of SC.335/2012 in favour of the Applicant may render the hearing of SC.54/2012, no longer necessary. However, in the event that both appeals are heard together then it will obviate the need for further delay in hearing SC.54/2012 for which an order, accelerating its hearing was made by this court on 18/2/14. The learned SAN urged that the two appeals should be heard together but that SC.335/2012 should be considered first. He urged the court to grant his application.

Learned SAN, for the Respondents, Mr. Udechukwu, while opposing the Motion, stated that both decisions of the Court of Appeal in SC.54/2012 and SC.335/2012 are final decisions on different issues. That two separate records of appeal were filed in respect of the two appeals which are radically different in contents. He said he did not object to the hearing of SC.335/2012 first if the Applicants want it like that, but it will be against the interest of the Respondents if both appeals are heard together as that would amount to cross-examination of the issues.
My noble Lordships, although this is an application for a merger or consolidation of two appeals: SC.54/2012 and SC.335/ 2012, for the purpose of hearing and determining both simultaneously, I think there is need to bring to the fore relevant facts giving rise to each of the two appeals with a view to observing the similarities and the dissimilarities between the two, and ipso facto, the possibilities or otherwise of hearing and determining both together.

Parties in that notice of appeal in the court below were reflected as follows:

“Between:
Mr. Abiebu Nicodemus
Dogood Philip
Oboada Asitogho
Chief Ujile D. Ngere
A. W Mbosowo
(For themselves and as representatives
Of the entire people of Ngere Family of Ngo Town)
AND
Chief Job William Okuruket “XIV”
Pastor Fineface Aaron Okuruket
Nnadi Paul Ibotile
Simon Ayayi
(For themselves and as representatives
Of the entire people of Unwule Royal House of Ngo Town)
The parties in this appeal as born by the notice of appeal are:
1. Chief Ujile D. Ngere
2. A. W Mbosowo
(For themselves and as representatives
Of the entire people of Ngere Family of Ngo Town)
AND
1. Chief Job William Okuruket ‘XIV”
2. Pastor Fineface Aaron Okuruket
3. Nnadi Paul Ibotile
4. Simeon Ayayi
(For themselves and as representatives
Of the entire people of Unwule Royal House of Ngo Town),”

It is to be observed that Chief U. D. Ngere and Mr. A. W. Mbosowo were part of the Appellants in SC.54/2012 whereas both were the Appellants in SC.335/2012. The Respondents remain the same in both appeals. In SC.54/2012, the Respondents as Plaintiffs at the trial court, sued for themselves and in a representative capacity. The then Defendants were in the persons of Chief Harry Ngere, Abiebu Nicodemus; Dogood Philip and Oboado Asitogho (who were for themselves and on behalf of others). The Respondents claimed some declaratory reliefs in relation to the traditional chieftaincy stool of the Ngo Community in Adoni, Rivers State.

The Respondents as Plaintiffs at the trial court were claiming some six (6) declaratory reliefs against the Appellants/Defendants. At the end of hearing, the learned trial judge delivered his judgment on the 14th of December, 2006. He granted Prayers 1 and 2 of the further amended statement of claim while he dismissed Prayers 3-6 of the same statement of claim (Page 463 of the record). The Respondents were dissatisfied. They appealed to the court below. The court below allowed the appeal and granted Prayers 3-6. Dissatisfied the Appellants appealed to this court. This is what gave rise to appeal SC.54/2012. The genesis of SC.335/2012 started in 1986, when the Respondents, herein, instituted Suit No. BHC/41/1986. During the pendency of that suit at the trial court, the Appellants herein, filed an application before the trial court seeking for an order dismissing the Respondents’ claim and raised objection to the competence of the trial court to entertain same on the ground that by virtue of the Chieftaincy Edict No.5 of 1978, the jurisdiction of the trial court was ousted. In response, the Respondents filed a counter affidavit to the said application.

In its ruling of 9th June, 1987 the trial court overruled the Respondents’ preliminary objection and ordered the Appellants (as defendants) to file their defence. After settlement of pleadings, trial commenced and, at the end, the learned trial judge found that he lacked jurisdiction to entertain the suit. He consequently, struck out the suit.

Dissatisfied with the ruling, the Respondents appealed to the court below. After reviewing the whole processes involved in the appeal, the court below allowed the appeal, nullified the judgment of the trial court and ordered for a retrial before the trial court. Dissatisfied further, the Appellants filed an appeal to this court. This is what gave rise to SC.335/2012.
My Lords, what I understand the Applicant to be asking is to consolidate or merge the two appeals so that both can be heard and determined together.

Consolidation, generally, means to make solid or firm, to unite, compress or pack together and form into a more compact mass, body, or system. 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. I came across a captivating definition of “consolidation,” by Musdapher, JCA. (as he then was), in the case of: Kutse v. Bakfur (1994) 4 NWLR (Pt.337) 196 at 209 E-G CA, 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.”


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