IN THE COURT OF APPEAL OF NIGERIA
On Friday, The 16th day of May, 2014
1. ALHAJI YUSUFF KADIRI ................. Appellant
2. ALHAJI YUSUFF OLANREWAJU
OTUNBA CHIEF (DR) J. A. EWUOSO .............. Respondent
O. J. Akokaike for Appellant
S. A. Adewolu for Respondent
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the Ruling of the High Court of Lagos State delivered by I. O. Harrison J. On the 14th day of February 2012 whereby the 1st appellant's application to dismiss the substantive suit on grounds of abuse of court process was refused.
The Respondent in this appeal had as a claimant in the lower court filed a writ of summons and a statement of claim dated the 20-5-2011 against the defendants (now appellants) wherein he claimed as per paragraph (i-iv) of the statement of claim as follows:-
i) A Declaration that the Claimant is entitled to exercise all the rights vested in him over the Defendant's property situated at No. 51, IGA IDUNGANRAN STREET, OFF IDUMAGBO AVENUE, LAGOS as stipulated in the Agreement dated the 23rd day of August, 2010 without any obstruction or interference by the Defendant.
ii) A Declaration that the Defendant is not entitled to lease or let his property situated at No. 51, IGA IDUNGANRAN STREET, OFF IDUMAGBO AVENUE, LAGOS to any person or repossess the said property until the Agreement made between the Claimant and the Defendant on the 23rd day of August 2010 in respect of the property expires by effluxion of time.
iii) An order of perpetual injunction restraining the Defendant, his agents, servants or privies from interfering with the claimant in any manner whatsoever in the exercise of all the rights vested in him under the Agreement made on the 23rd day of August 2010 in respect of the property situated at 51, IGA IDUNGANRAN STREET, OFF IDUMAGBO AVENUE, LAGOS until the Agreement expires by effluxion of time.
iv) An order of perpetual injunction restraining the Defendant from leasing or letting to any person his property situated at No. 51, IGA IDUNGANRAN STREET, OFF IDUMAGBO AVENUE, LAGOS or from repossessing the said property or dealing with the same in a manner inconsistent with the rights of the Claimant as stipulated in the Agreement made on the 23rd day of August 2010 until the Agreement expires by effluxion of time.
The Respondent also filed a motion on notice dated 28/6/2011 seeking an order of Interlocutory injunction restraining the appellants from restructuring, further, restructuring, damaging, subleasing or subletting the Respondents property situate at No. 51, Iga Idugunran Street, off Idumagbo Avenue, Lagos.
The Appellants reacted by filing a memorandum of conditional appearance dated 11-7-2011 and followed it with their statement of defence dated 25-7-2011.
While the 1st appellant by an application dated 11-7-2011 sought for an order striking out his name from the suit on the ground that he was improperly joined as a party to the suit, the 2nd Appellant filed an application dated 11-7-2011 for an order of the court dismissing the suit for being an abuse of process as well as a counter affidavit in opposition to the Respondents motion for interlocutory injunction.
The Respondent also reacted to the appellants' two applications by filing two counter affidavit to oppose the motion to dismiss the suit and the 1st appellant's motion to strike out his name from the suit.
The three applications, that is to say, motion for interlocutory injunction; motion to dismiss for abuse of process and motion to strike out the name of 1st defendant came up for hearing on the 1-12-2011. They were all accordingly moved and the parties duly adopted their written addresses after which the three applications were adjourned to 19-12-11 for Ruling. The said Ruling was however not delivered until the 14th February, 2012 wherein the lower court held inter alia as follows:-
"The justice of the case will require that the substance of the dispute between the parties be determined on its merits and this will naturally entail proper service of the originating processes in the suit No: LD/941/11 on the claimant herein, consolidation of the case before any of the presiding judges and determination of pending interlocutory matters before a single judge.
It should be noted that 2 other applications were argued one for striking out the name of the 1st defendant and the other for interlocutory injunction. The court believes that the interest of justice will be better served if the said applications are either re-argued and/or ruling delivered on same by the judge who will eventually have conduct of the consolidated suit. For this reason an order of dismissal of the suit will not be granted in the light of the above peculiar situation, the court in the interest of justice orders as follows:-
i. Application to dismiss suit for abuse of process is refused.
ii. The case Suit No. LD/1190/11 is hereby stayed pending regularization of procedural irregularities and filing of an application for consolidation of the suits No. LD/941/2011 and LD/1190/2011.
iii. Fresh arguments will be taken or ruling delivered on the pending motions dated 11/7/2011 and 28/6/2011 after the application for consolidation has been considered/determined.
iv. In view of the pending motions for interlocutory injunction/striking out filed in this suit, the parties herein shall be given a time limit of 30 days to comply with the above directive as regards filing and service of the motion for consolidation of the 2 suits.
This shall be the ruling of the court.
Hon. Justice I. O. Harrison (Mrs.)
The appellants were dissatisfied with the decision of the lower court hence they opted to file a notice of appeal dated and filed on 28-2-2002 and it has five grounds of appeal which shorn of their particulars are set out herein below:-
"3.1 The learned trial judge erred in law when he held that:-
"The court resolves this doubt in favour of the Claimant as mere knowledge of a pending suit through a 3rd party does not amount to service in line with the rules of court..."
3.2 The learned trial judge erred in law when he said:
"The Claimant on the other hand who averred that service was purportedly effected at a wrong address and same is being contested in the court of Hon. Justice Nicol-Clay failed to exhibit the application to set aside service or any other relevant processes to enable the court determine the issue
The court finds that in the absence of service of the originating processes in SUIT No. LD/941/2011 the Claimant cannot be said to have instituted this action with the intent to utilize the court processes maliciously to harass or annoy the defendant."
3.3 The learned trial judge erred in law when he refused the Appellants' application to dismiss the suit for being an abuse of court process.
The learned trial judge erred in law when he made an order for the filing of an application for consolidation of SUIT No. LD/941/2011 and SUIT No. LD/1190/2011.
3.5 The learned trial judge erred in law when he said:
"It should be noted that 2 other application were argued are striking out the name of the 1st defendant and the other for interlocutory injunction. The court believes that interest of justice will be better served if the said applications are either re-argued and or ruling delivered on same by the judge who will eventually have conduct of the consolidated suit."
Briefs of argument were subsequently filed and served in compliance with the Rules of this court. The appellants' Brief of argument is dated and filed on 6-7-2012 and four issues were distilled therein for determination. They are:-
(1) Whether the learned trial judge was right when he refused the 2nd appellant's application for an order dismissing the suit for being an abuse of court process (Ground 1 and 3).
(2) Whether the learned trial judge was right when he determined the issue of service of the originating processes in SUIT No. LD/941/2011 which was an issue before Nicol-Clay J. (Ground 2)
(3) Whether it is proper or permissible in law for the learned trial judge to suo motu make an order directing the parties to file an application for consolidation. (Ground 4)
(4) Whether the learned trial judge acted in accordance with law when he failed to deliver his ruling on the 1st appellant's application dated the 11th day of July 2011.
In the Respondents brief of argument, the following three issues were formulated for determination:-
(i) Whether the appellants' application for dismissal of the suit was rightly refused.
(ii) Whether the order of stay of suit No. LD/1190/2011 pending regularization was rightly made by the lower court.
(iii) Whether the two motions dated 11/7/2011 and 28/6/2011 were properly adjourned "by the court"
Except for the appellants' issue 2, the other issues formulated by the parties are similar in content. I will however adopt the four issues as raised in the appellants' brief in the determination of this appeal.
ISSUE No. 1
Dwelling on this issue, learned counsel for the appellants referred to the claims said to have been made by the 2nd appellant in a writ of summons dated 20-5-2011 in suit No. LD/941/2011 as well as a letter dated 8/6/2011 written by the 2nd appellant to Respondents counsel to inform him about the filing of the said suit. The Respondent counsel's letter dated 16/6/2011 acknowledging receipt of the said letter was also referred to.
He added that the Respondent subsequently filed suit No. LD/1190/2011 on the 28/6/2011 claiming reliefs relating to the same property at No. 51, Iga Idugaran Street, Off Idumagbo Avenue, Lagos on the basis of the lease agreement dated 23-8-2010. This he submitted constitutes an abuse of process hence the 2nd appellant filed an application dated 25/7/11 for an order to dismiss the suit No. LD/1190/2011 for abuse of court process.
He referred to the following authorities on the definition of "abuse of court process"
CHIEF SODIPO v. LEMMINKAINEN & ANOR (1992) 8 NWLR (Pt. 258) 229 at 242; SARAKI v. KOTOYE (1992) 9 NWLR (Pt. 246) 156 at 188 and N.I.M.N. LTD v. UBN LTD (2004) 12 NWLR (Pt. 888) 599 at 624.
He added that from the writ of summons and statement of claim attached to the affidavit in support of motion to dismiss the suit as Exhibit B, it was clear that the suit filed by the 2nd appellant is still pending before another court when the Respondent instituted another suit between the same parties on the same subject matter as in the earlier suit and a careful perusal of suit No. LD/941/2011 and LD/1190/2011 shows that the parties, subject matter and reliefs are the same.
He referred to the documents attached as Exhibit B and C to the affidavit in support of 2nd appellants' application to contend that the Respondent had knowledge of the pending suit No. LD/941/2011 before instituting suit No. LD/1190/2011 and the lower court noted this fact in the ruling but failed to dismiss the suit for being an abuse of process. He added that the learned trial judge made a perverse decision when he held in the ruling that:-
"The court resolves this doubt in favour of the claimant as mere knowledge of a pending suit through a third party does not amount to service in line with the rules of court........"
He cited a number of authorities on the meaning of a perverse decision. It was further submitted that the learned trial judge shut his eyes to the overwhelming evidence before the court vide exhibits B and C and refused the application to dismiss suit No. LD/1190/2011 for being an abuse of process of the Court.
Responding on this issue, learned counsel for the Respondent submitted that non service of an originating process on a litigant is a fundamental vice because it is the service of a processes on a litigant that gives the court the necessary competence and jurisdiction to hear any case before it.
He added that from the records, the respondent was not served with the originating processes in suit No. LD/941/2011 and in as much as the respondent was not so served, respondent could not know that he has been sued or the nature of the case or claims made against him and it constitutes a fundamental vice citing KIDA v. OGUNOLA (2006) 26 NSCQR (Pt. 2) 1313 at 1375.
It was further submitted that since the Respondent was not served with the originating process in suit No LD/941/2011 the lower court was right to have held that the Respondent's suit did not constitute abuse of process.
Abuse of Process of court is a term generally applied to a proceeding which is wanting in a bona fide and is frivolous, vexatious and oppressive. It may occur when a party improperly uses judicial process to the harassment, irritation and annoyance of his opponent and to interfere with the administration of justice. The multiplicity of actions which involve the same parties and the same subject matter amount to abuse of the process of the court and a court has a duty to stop such abuse. See SEVEN UP BOTTLING CO. LTD v. ABIOLA AND SONS BOTTLING CO. LTD (1996) 7 NWLR (Pt. 75) 156 at 177; PAVEX INTERNATIONAL CO. LTD v. IBWA. (1994) 5 NWLR (Pt. 347) 685 and OKORO DUDU v. OKOROMADU (1977) 3 SC 21.
To determine whether an abuse of the process of court has occurred, the court will consider the content of the process filed in the first suit and compare them with those filed in the second one in order to ascertain whether they are aimed at achieving the same purpose. See AGWASIM v. OJOCHIE (2004) 10 NWLR (Pt 882) 613.
In DINGYADI v. INEC (2010) 44 NSCQR 301 at 340, the Supreme Court posited that:-
"The term "Abuse of Court Process" connotes simply the misuse of courts process and it includes acts which otherwise interfere with the course of justice. Clearly the acts include where without reasonable ground a party institutes frivolous, vexation and oppressive actions and also by instituting multiplicity of actions or i.e. seeking a favourable court to entertain a matter. It also includes depriving the court if its jurisdiction".
Further elucidation on the issue of Abuse of Process of court is provided by the Supreme Court in SARAKI v. KOTOYE (1992) 11-12 SCNJ 2C or (1992) 9 NWLR (Pt. 264) 155 where it was held that:-
"It is recognized that the abuse of process may lie in both proper and improper use of the judicial process in litigation but the employment of judicial process is only regarded generally as an abuse when a party improperly uses the issue of judicial process to the irritation and annoyance of his opponent, and the efficient and effective administration of justice. This will arise in instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues. See OKORODUDU v. OKOROMADU (1977) 3 SC 21; OYEGBOLA v. ESSO WEST AFRICAN INC. (1966) 1 All NLR 170; thus the multiplicity of actions on the same matter between the same parties even where there exists a right to bring the action is regarded as an abuse. The abuse lies in the multiplicity and manner of the exercise of right, perse. The abuse consists in the intention purpose and aim of the person exercising the right to harass, irritate and annoy the adversary and interfere with the administration of justice, such as instituting different actions between the same parties simultaneously in different courts, even though on different grounds"
Similarly, it was held in OKAFOR v. A.G. ANAMBRA STATE (1991) 6 NWLR (Pt. 200) 659 that:-
"It is the law that multiplicity of actions on the same matter constitute an abuse of process of the court. But this is so only where the action is between the same parties with respect to the same subject matter"
See also IKINNE v. EDJERODE (2001)12 SC (PT 11) 94.
In the main, the abuse of court process would occur in one of the following situations:-
(a) Where the parties, subject matter and issue in a previous and a later suit are the same.
(b) Where different actions are filed in different or the same court simultaneously in respect to the same right and subject matter.
(c) Where a party litigates again on the same issue which has already been litigated upon between him and the same person by facts on which a decision has already been reached, and
(d) Where the proceedings is wanting in bona fide, and frivolous, vexation, oppressive or amounts to abuse of legal procedure or improper legal process.
See U.B.N LTD v. EDAMKUE (2004) 4 NWLR (Pt. 863) 221; UKACHUKWU v. UBA (2005) 18 NWLR (Pt. 956) 1 and JIMOH v. STARCO (NIG) LTD (1998)7 NWLR (Pt. 558) 523.
In the instant case, the writ of summons and statement of claim in suit No. LD/941/2011 was attached as Exhibit B to the affidavit in support of the appellants' motion to dismiss the suit. The said suit is dated 20-5-2011. Suit No. LD/1190/2011 filed by the Respondent is dated 28-6-2011. The first suit is said to be before NICOL-CLAY J. While the instant one came before I. O. Harrison J.
The parties, and the subject matter in both suits are the same but the reliefs sought are at variance to some extent. This, the respondent also agreed to but only insists that the issue of abuse of process does not arise because he was never served with the originating processes in suit No. LD/941/2011 before he instituted suit No. LD/1190/2011 on the 28/6/2011.
For the appellant counsel however, the respondent's counsel was sent a letter dated 8/6/2011 wherein he was informed that an action has been instituted against the Respondent and the said letter was acknowledged by the Respondent's counsel and this serves as enough proof that there is an existing action.
The learned trial judge however did not see it that way, as shown in his Ruling at page 157 of the Record wherein it was held as follows:-
"The court however finds that on major ingredients on which abuse of court process stands is that the party in question must have full knowledge of the pendency in court of the prior suit.
See - Udeosoh v. Nwakanobi 2003 4 NWLR (Pt. 811) p.643
It in the knowledge of the suit by the party that will cause the court make a finding of malice and/or intent to annoy and harass his opponent. In the case at hand the claimant has stated that he was not and up till now has not been served with any originating processes in suit No: LD/941/2011. The court observes that this vital point has not been dealt with by both parties, the defendant/applicant failed to place any concrete material before the court e.g. affidavit of service, order of substituted service and/or photographic evidence of the originating processes pasted if service was not personal. The claimant on the other hand who averred that service was purportedly effected at a wrong address and some is being contested in the court of Hon. Justice Nicol-Clay failed to exhibit the application to set aside service or any other relevant processes to enable the court determine the issue. It is trite that service of process is vital under the due process of Law.
See - Guda v. Kitta 1999 12 NWLR (Pt. 629) p.21
The court resolves this doubt in favour of the claimant as mere knowledge of a pending suit through a 3rd party does not amount to service in line with the rules of court.
See Otobaimere v. Akporehe 2004 14 NWLR (Pt. 894) p.59
The court finds that in the absence of service of the originating processes in suit LD/941/2011, the claimant herein cannot be said to have instituted this action with the intent to utilize the court processes maliciously to harass or annoy the defendant."
I can hardly find fault with the finding of the learned trial judge as it represents the correct position of the law on service of originating processes. To merely write to a party or inform him orally that an action has been instituted against him lacks substance and cannot stand the test of proper service more so that the alleged letter was written to the Respondent's counsel and not directly to him. The question is, what informed the decision of the appellants to dispatch such a letter when there was no pre-existing suit between the parties in which the said counsel was representing the Respondent? To assume that the said counsel will represent the respondent in the said suit is glaringly speculative; hence fresh/originating processes are of necessity served directly on the adverse party. That notwithstanding, mere knowledge of the existence of a suit by a party through correspondence does not suffice because the essence of service, of an originating process on a defendant in any suit or proceeding is to bring to the notice of such defendant, the pendency, as well as the nature of the claim against him, this will enable him takes steps as appropriate to defend or challenge the claim or suit if he so desires to do so. It is therefore unsatisfactory and unacceptable for a party to know about the existence of a suit through correspondence or mere information by a third party. Thus even if he is so informed, it does not dispense with the imperative of proper service of the originating processes on him. See ALHAJI LAI MOHAMMED v. CHIEF AFE BABALOLA (2011) LPELR-8973 where this court held inter alia that:-
"It will not suffice that the defendant knows or is informed that a suit has been filed against him, as the fact that he is aware that he has been sued in court does not dispense with the need to serve him with an originating process. Service of any originating process is thus a basic or fundamental requirement in the activation of the jurisdiction of the court against any defendant. Service of process is therefore essentially for the person to whom it is directed to have knowledge that he has a case to answer or claim to dispute before the court".
In the instance case, granted that the respondent was aware or had knowledge of suit No. LD/941/2011, but without being served with the originating processes to wit: the writ of summons and statement of claim, how then would he have known the nature and type of claim against him as to take a decision whether or not to institute his own action as constitutionally guaranteed. To constitute an abuse of process of court, a defaulting party must not only be aware, but be seized of the originating processes filed by his adversary in the earlier suit; it cannot arise by mere speculation or conjecture. I therefore agree with the finding of the lower court that in the absence of service of the originating processes in suit No. LD/941/2011, the Respondent cannot be said to have instituted this action with intent to utilize the court process maliciously to harass, annoy or intimidate the appellants.
This issue is accordingly resolved against the Appellants.
ISSUE No. 2
Whether the learned trial judge was right when he determined the issue of service of the originating processes in SUIT NO LD/1190/2011 which was an issue before Nicol-Clay J.
Herein learned counsel for the appellant referred to the ruling of the lower court where it was held inter alia that:-
"The court finds that in the absence of service of the originating processes in suit No. LD/941/2011 the claimant cannot be said to have instituted this action with the intent to utilize the court processes maliciously to harass or annoy the defendant".
He argued that by the said decision the learned trial judge had made a pronouncement on the issue of service of originating processes in suit No. LD/941/2011 on the Respondent when the Respondents application on the same issue is yet to be determined by Justice NICOL-CLAY
He added that it is improper for a learned trial judge to pronounce on an issue not before him but before another court of co-ordinate jurisdiction. See PAIKO (PRESS & BOOK) LTD v. CBN (2001) 3 NWLR (Pt. 700) 347 at 373 - 374. This he says is because it was wrong for the lower court to have pronounced on the issue of service of originating process in suit no LD/941/2011 on the Respondent.
This issue is ordinarily subsumed under issue No. 1 hence the Respondent did not proffer any specific argument on it. I had also earlier held while considering issue No 1 that the learned trial judge was right in his finding that in the absence of service of the originating processes in Suit No. LD/941/2011, the Respondent cannot be found guilty of abuse of court process. For the appellants the finding of the learned trial judge amounts to pronouncement on an issue not before him but before another court of co-ordinate jurisdiction.
The appellants seemed to have ignored the fact that they filed an application before the lower court and attached processes filed in another court in proof of their reliefs being sought. The lower court definitely will not swallow everything hook, line and sinker without analyzing, examining and making a finding on the evidence before it. To hold that there is an abuse of court process the lower court needed to be satisfied that the Respondent was duly served with the originating processes in suit No. LD/941/2011 and having discovered otherwise that there was no proof of service of the processes aforementioned it cannot reach a conclusive or genuine decision without pronouncing on its findings based on the material evidence before the court. This definitely does not amount to pronouncing on an issue before another court of co-ordinate jurisdiction.
This Issue is accordingly resolved against the Appellants.
ISSUE No. 3
Whether it is proper or permissible in law for the learned trial Judge to suo motu make an order directing the parties to file an application for consolidation.
For the appellants, it was submitted that the law is firmly settled that the court is precluded from speculating or making a case for either party to the proceedings by suo motu formulating the weakness in the case and resolving same in favour of one of the parties.
He contended that, since there was no application before the court praying for consolidation of suit No: LD/941/2011 and LD/1190/2011, it was wrong for the learned trial Judge to deviate from the applications before him relating to dismissal of the Suit and interlocutory injunction and then proceed to make an order for filing application for consolidation of the two suits.
He added that a trial court has no business to deal with any issue not placed before it without first giving the parties the opportunity to address the court on such issue. He relied on the case of FADLAHAH v. AREWA TEXTILE LTD. (1997) 8 NWLR (Pt. 518) 546 at 559; USMAN v. UMARU (1992) 7 NWLR (Pt. 254) 37 at 398; OJO v. VICTINO FIXED ODDS LTD. (2000) 9 NWLR (Pt. 673) 649 and OSHODI v. EYIFUNMI (2000) 13 NWLR (Pt. 684) 298 at 332.
It was learned counsel's further contention that even if it was proper for the learned trial Judge to have directed the parties to file an application for consolidation, it is not within the province of a trial court to make an order to file such application when pleadings have not closed in the two Suits because by law an application for consolidation can only be entertained if pleadings are delivered and issues joined. See TORIOLA v. WILLIAMS (1982) ALL NLR 188 at 202; and N.E.W. LTD. v. DENAP LTD. (1997) 10 NWLR (Pt. 525) 4981 at 515.
Consequently he argues, the fact that pleadings have not been closed in Suit No: LD/1190/2011 and Suit No: LD/141/2011 the trial court acted ultra vires in ordering for the filing of application for consolidation.
For the Respondent, it was submitted in his issue No: 2 that it will be in the interest of justice for both suits which are by the same parties on the same subject matter on the same reliefs to be heard together in one court. Therefore it was proper for the trial court to have ordered that the two suits be upon application by the parties, consolidated, in order to same time and costs citing the following case: - DELTA STEEL CO. LTD. v. ADITIYA & ORS. (1991) 3 NWLR (Pt. 179) 359 at 372 and KENON v. TEKAN (2001) 7 NSCQR 147.
In their reply brief it was contended by the Appellants' counsel that the issue No. 2 formulated by the Respondent does not arise from a Ground 4 of the Notice of Appeal and does not actually relate to any of the Ground of Appeal and should accordingly be struck out for being incompetent. He referred to the following authorities:- AFRICAN PETROLEUM LTD. v. OWODUNNI (1991) 8 NWLR (Pt. 210) 391 at 423; SHA (JNR) v. KWAN (2000) 8 NWLR (Pt. 670) 700 and WANKA v. UBN LTD. (1991) 9 NWLR (Pt. 213) 112 at 124.
Consolidation of actions is the process whereby two or more separate actions pending in the same court are joined and tried together at the same time, in order to save time and costs. See OKWUAGBALA v. IKWUEME (2004) 10 NWLR (Pt. 882) 591 and EDOBOR v. OLOTU (2002) LPELR (9288) CA. In UME v. IFEDIORAH (2001) 8 NWLR (Pt. 714) 35 at 38 the apex court provided the rationale for consolidation of Suit as follows: -
"The rationale for the consolidation of actions is to save time and resources which would otherwise be expended in multiple trials in respect of the same issues of fact and law arising in two or more suits. Thus, where common questions of law or acts feature in the cases, the same arguments are to be preferred by the parties and the same witnesses are bound to testify in proof of the facts in controversy, the suits ought to be consolidated to avoid multiplicity of actions."
See: also LEDIJU v. ODULAJA (1943) 17 NLR 15 and ATAYI FARMS LTD. v. NACB LTD. (2003) 4 NWLR (Pt. 810) 427.
In the instant case, Suit No: LD/941/2011 and LD/1190/2011 involve the same parties and the same subject matter relating to the lease of the property at No. 51, Iga Idugunran Street, Off Idumagbo Avenue, Lagos. From a perusal of the writ of summons and the statements of claim in the two suit, it appears to me that it will be quite appropriate to consolidate both on grounds of time and resource conservation but this to my mind is subject to the issue of service of the processes in Suit No: LD/941/2011 on the Respondent and he has to react to it by filing his pleading. It will therefore be out of place and irregular to make an order of consolidation of the two Suits when one of the parties is yet to see or react to the processes in one of them. Another snag is that Suit No: LD/941/2011 is said to be before another court presided by NICOL-CLAY J. while suit No: LD/1190/2011 is before I. O. Harrison J., while I am not disputing or questioning the power of the Judge of a Superior Court of Record to act in the interest of proper and speedy administration of justice by directing parties concerned to formally apply to consolidate the two suits filed by them, this power to my mind can only be effectively exercised where the two suits reside in the same court. As at now, no court has been conferred with the power to make an order strictly beyond its immediate inherent jurisdiction into another court of co-ordinate jurisdiction to affect a matter filed in the latter court. That will amount to undue interference. The learned trial Judge had in her ruling at page 158 of the Record order as follows:-
i. Application to dismiss suit for abuse of process is refused.
ii. The case Suit No. LD/1190/11 is hereby stayed pending regularization of procedural irregularities and filing of an application for consolidation of the suits No: LD/941/2011 and LD/1190/2011.
iii. Fresh arguments will be taken or ruling delivered on the pending motions dated 11/7/2011 and 28/6/2011 after the application for consolidation has been considered/determined.
iv. In view of the pending motions for interlocutory injunction/striking out filed in this suit, the parties herein shall be given a time limit of 30 days to comply with the above directive as regards filing and service of the motion for consolidation of the 2 suits."
Making the orders in items (ii) & (iii) and (iv) above when Suit No: LD/941/2011 is not before it but before another court and parties have not expressed the intention to have it transferred out of the said court is beyond the powers of the lower court.
Order 37 Rule 7 of the Lagos State High Court (Civil Procedure Rules) provides a guideline on the procedure for consolidation of actions. It reads: -
Order 37 Rule (7) (1):- "The judge may on application consolidate several actions pending before him where it appears that the issues are the same in all the actions, and therefore can be properly tried and determined at the same time.
(2) Where actions are pending before different judges, a party desiring consolidation shall first apply to the Chief Judge for transfer of the matter to a judge before whom one or more of the matters is pending.
(3) An order to consolidate may be made where two or more actions are pending between the same claimant and the same defendant or between the same claimant and different defendants or between different claimants and the same defendant or between different claimants and different defendants:
Provided that where the same claimants brings action against different Defendant, they will not be consolidated without the consent of all the parties unless the issues to be tried are identical.
(4) Where an order for consolidation has been made, it shall be drawn up at the expense of the party who applied for consolidation and shall be recorded in the cause book.
By a combination of Order 37 Rule 7(1) and (2) it behoves any of the parties to apply for consolidation where the issues are the same in all or both actions and can therefore be properly determined at the same time and the judge has the discretion to grant the application. Where the actions are pending before different judges (as in this case) a party who desires consolidation of the actions shall first apply to the Chief Judge for transfer of the matter or matters to a judge before whom one of the matters is pending.
The provisions, to my mind, are clear and unambiguous to the effect that as in the instant case, it is not for the trial judge to direct for consolidation but the parties are to indicate their interest in such venture moreso that one of the actions is pending before Nicol-Clay J. The parties need to apply to the Chief Judge first for transfer of one of the suits from one court to another before any consolidation.
This issue is accordingly resolved in favour of the appellant.
ISSUE No. 4
Whether the learned trial judge acted in accordance with Law when he failed to deliver his ruling on the 1st appellants application dated 11-7-2011.
It was herein submitted that the trial court having heard the 1st Appellants' application for an order striking out his name from the suit on the premise that he was improperly joined as a party ought to have delivered his ruling one way or the other. He relied on N.A.A. v. ORJIAKOR (1998) 6 NWLR (Pt. 553) 265 at 282 and IKONGO LG v. DE BEACON FIN. & SEC LTD (2002) 4 NWLR (Pt. 756) 128 and MMS LTD v. OTEJU (2005) 14 NWLR (Pt. 945) 517 at 538.
He added that it is mandatory for the trial court to make its decision known so that a party who feels aggrieved by such decision would have the opportunity to look at the Ruling and appeal against it and as such the pronouncement of the trial judge tantamount to keeping the ruling on the 1st appellant's application in abeyance and it is not permissible for any court to leave the outcome of an application already adjourned for Ruling hanging.
Therefore he argues, the failure of the trial court to deter mine the 1st appellant's application having already heard same is a total negation of the parties right to fair hearing as guaranteed under Section 36 of the 1999 Constitution. See DINGYADI v. INEC (No. 1) (2010) 18 NWLR (Pt. 12241) 1 at 53. He then urged this court to answer the issue in the negative and resolve same in favour of the appellants.
Responding on this issue in his issue No. 3, the learned counsel for the Respondent submitted that the ground 5 of the Notice of appeal where the appellants issue 4 is derived is based on mixed law and facts and not only Law in which case they ought to seek leave of the lower court before filing the said ground and since no leave was obtained as per Section 242 of the Constitution, it renders it incompetent. Similarly, he says, the appellants did not seek leave of the lower court before filing the notice of appeal and this renders the said Notice of appeal incompetent and there is no valid appeal before this court. See C.B.N. v. OKOJIE (2001) 9 NSCQR 612 at 617; METAL CONSTRUCTION WEST AFRICA LTD v. MILGLIORE (1990) 1 NWLR (Pt. 126) 299 at 305.
This court was then urged to strike out the Notice of appeal and dismiss the appeal.
Responding on the Respondents issue No 3 in their reply brief, the appellants counsel contended that the said Respondents issue No. 3 did not arise from any of the grounds of appeal and should be struck out moreso that it has no bearing with the ground 5 from which it was stated to have been raised. He then urges this court to strike out the Respondents issue No 3 with the arguments in support.
Alternatively, it was submitted that the argument canvassed with respect to the Respondents issue No 3 does not have any bearing or nexus with the issue so formulated, because while the issue raised was as to whether the two motions were properly adjourned by the lower court, the argument canvassed was in connection with the ground 5 of the Notice of Appeal being of mixed law and facts and failure to obtain leave of court before filing the Notice of appeal. Thus the argument is alien to the third issue formulated by the respondent and ought to be totally discountenanced. ONUAGULUCHI v. NDU (2000) 11 NWLR (Pt. 679) 519 at 556.
He added that even if the argument is found to relate properly to the Respondents issue No 3, the Respondent did not follow the right procedure for challenging the competence of a Notice of appeal or a ground of appeal. He therefore urged that the entire argument in Respondent's issue No. 3 should be discountenanced.
Now the issue No 3 formulated for determination in the Respondents brief of argument reads thus:-
(iii) Whether the two (2) motions dated 11/7/2011 and 28/6/2011 were properly adjourned by the court."
I have read through the five grounds in the Notice of appeal and none of them relate to the adjournment of any motion. The Respondent therefore seems to have opted to raise an issue not connected with the grounds of appeal and he did not file any Cross appeal. It is trite that and correct statement of the law that an issue for determination in an appeal which is not related to or derived from any of the grounds of appeal challenging the judgment appealed against is incompetent and must be discountenanced together with the arguments advanced thereunder in the consideration of the appeal. See ADELUSOLA v. AKINDE (2004) 12 NWLR (Pt. 887) 295, IDIKA v. ERISI (1988) 2 NWLR (Pt. 78) 563; EGBE v. ALHAJI (1990) 1 NWLR (Pt. 128) 546; ADAH v. ADAH (2001) 2 SCNJ 90 at 97; AGBAISI v. EBIKOREFE (1997) 4 NWLR (Pt. 502) 630 and in SPDC (NIG) LTD v. EDMKUE & ORS (2009) LPELR-3048) SC. It was held that it is now firmly settled that the general rule, is that issue or issues for determination must relate to or be derived from a ground of appeal, otherwise it will be incompetent and must therefore be discountenanced or struck out. In the circumstance the Respondents issue No 3 is hereby struck out together with the argument in support having been found not have been derived from any of the grounds of appeal.
Now dwelling on the submission of the appellants counsel that it was wrong and irregular for the learned trial judge not to deliver Ruling on the two motions for which arguments have been canvassed and adjourned for Ruling. The learned trial judge had in the Ruling delivered on 14-2-2012 and found at page 158 of the Record held thus:-
"It should be noted that two other applications were (sic) argued are for striking out the name of the 1st defendant and the other for interlocutory injunction. The court believes that the interest of justice will be better served if the applications are either re-argued and/or ruling delivered on same by the judge who will eventually have conduct (sic) of the consolidated suit."
The two applications under reference were moved and the respective written addresses in support adopted on 1-12-2011 and they were adjourned to 19-12-2011 for Ruling.
From the above scenario, it seems to me that the finding and order of the learned trial judge was not only speculative but preemptive of what the parties may want to do with their cases. Having heard the applicants on the two applications and adjourned for ruling the court is duty bound to deliver the Rulings based on the facts before it. It does not behove a court to make a case for the parties, but to act on the materials available before it. It is also not within the purview of a court to make pronouncements affecting the fate of a suit before another court of co-ordinate jurisdiction.
For the learned trial judge to have withheld delivery of Rulings on the two applications before the court on the basis that both could be reargued or Ruling delivered on same by the judge who will eventually conduct the hearing of the suits when they are consolidated is to my mind erroneous and unjustified and goes contrary to the provisions of Section 294 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) which requires that every Court established under the constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final address and furnish all the parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof. In this regard I will re echo the decision of the Supreme Court in DINGYADI v. INEC (No. 1) 2010 18 NWLR (Pt. 1224) 1 at 53 (also relied on by the appellant) wherein it was held that:-
"It was further emphasized that it is not only essential but mandatory for a court before which a motion (or application) has been brought to hear and determine it at the appropriate time".
I may add here that the only excuse is where the applicant applies to withdraw such application timeously. Therefore this issue is resolved in favour of the appellant.
On the whole I find that this appeal succeeds in part and I so hold.
The Ruling of the lower court delivered by I. O. Harrison J. on 14-2-2012 whereby it was held that there is no abuse of court process is hereby affirmed while the order staying suit No. LD/1190/2011 and the applications connected therewith is hereby set aside.
Parties to bear their costs.
JOSEPH SHAGBAOR IKYEGH, J.C.A.:
My learned brother, Samuel Chukwudumebi Oseji, J.C.A., afforded me the privilege of reading in advance the comprehensive judgment prepared by His Lordship in which I concur in toto with nothing useful to add.
CHINWE EUGENIA IYIZOBA, J.C.A.:
I read before now the judgment just delivered by my learned brother, SAMUEL CHUKWUDUMEBI OSEJI JCA. I agree entirely with the judgment. His Lordship has dealt fully and comprehensively with all the issues raised in the appeal. I agree that the appeal succeeds in part. I abide by the consequential orders in the lead judgment including the order as to costs.