IN THE COURT OF APPEAL OF NIGERIA
On Monday, The 31st day of March, 2014
1. CHRISTOPHER OGIDI ................. Appellants
2. DAVID OGBUAGU
3. MICHAEL OKAFOR UKATU
4. ABEL ONUSULU
(parties substituted by order of Court dated 19/5/86 for themselves and on behalf of members of Ihuowelle Village of Igbo-Ukwu excepting the Defendants)
1. MUOBIKE OKOLI .............. Respondents
2. MARTIN EZEOKONKWO
3. PETER EZEOKONKWO
4. OKOYE OSUOKWO
5. GABRIEL OKOLI
Dr. Onyechi Ikpeazu SAN with Ben Osaka Esq and N.D. Agusiobo Esq for Appellant
Chief I.M. Anah for Respondent
EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgment):
On the 20-3-2000, the High Court of Anambra State struck out consolidated suit Nos. AA/6/75 and AA/19/76 on the grounds that it had no jurisdiction to entertain matters relating to lands in non-urban areas of the State.
By a motion on notice dated and filed on 7-3-2006, the defendants (now respondents herein) applied for an order granting leave to the Registrar of the trial court to relist the case which was struck out on 20-3-2000 for lack of jurisdiction.
Following the addresses of learned counsel on both sides the trial court on the 29-10-2007 rendered its ruling granting the application and granting leave to its Registrar to relist the case. Dissatisfied with this ruling of the trial court, the plaintiffs in the consolidated suits who were respondents to the application to relist on 12-11-2007, commenced this appeal No. CA/E/201/2008 by filing a notice of appeal containing one ground of appeal as follows-
"The learned trial judge erred in law when she relisted the case which was struck out for want of jurisdiction and thereby constituted herself an appellate judge over the decision of a court of coordinate jurisdiction.
PARTICULARS OF ERROR
1. The reason given in the order striking out the case by Okoli J., was that the court had no jurisdiction to adjudicate on the subject matter of the case.
2. Where a High court bases its decision on want of jurisdiction, it is wrong for the same High court in the same matter to rule that it had jurisdiction no matter the reason.
3. At the time the order-striking out the case was made the state of the law sustained the order of the learned trial judge who made it.
4. Alteration of the state of the law does not automatically obliterate the decisions taken under the previous dispensation.
5. The respondents had ample remedy other than urging the High court to abuse process by sitting on appeal over its own decision."
Both sides have filed, exchanged and adopted their respective briefs of argument.
The appellants' brief of argument raised only one issue for determination as follows-
"Whether the learned trial judge was wrong in ordering a relisting of the suit which was struck out for want of jurisdiction by a Court of co-ordinate jurisdiction."
The Respondents' brief of argument also raised one issue for determination as follows-
"Having regard to the sole ground of appeal, the respondents submit that the proper issue arising from the ground is whether having in mind that the order striking out the suit was based on decision of court now held to have been given per incuriam, the Learned trial judge was right in relisting the case so struck out."
I will determine this appeal on the basis of the issue for determination in the appellants' brief of argument. The Learned Senior Advocate for the appellants argued
1. that the decision of the trial court relisting the said suits will mean that all determinations of court while the decision in OYEDIRAN v. EGBETOLA (supra) prevailed, even if final judgments had been written, will be ignored or set aside by the very courts that rendered such judgments, and not on appeal to the appellate court. This is not a matter that should be domesticated or rationalized.
Nor is it a matter in which a short cut will be employed under the cloak of doing justice. Indeed in this case in which the Respondents allowed a period of over 6 (six) years to elapse since the decision in ADISA (supra), it is a matter which must be given serious consideration for clearly the parties had altered their position.
This is the very essence of the doctrine of implied necessity which is founded in the maxim Necessitias facit licitum quod alias non est licitum-meaning -
Necessity makes that lawful which otherwise is not lawful. Thus the decision of Okoli J. (as he then was) could not have been a void act, since there was a decision of the Supreme Court on which it was firmly based. It may well be a wrong decision with the subsequent alteration of the dispensation at the time when his decision was given, but the competent authority to declare it so is the matter now before the court. There is a world of difference between a void judgment and one which is wrong in law.
2. The trial Court on 20-3-2000 did not just strike out the matter. It made specific findings before the ultimate order striking out the matter. It determined that Igboukwu where the suit land is situate is not an urban area of the State, that it had no jurisdiction on matters relating to lands in the non urban area of the state and that therefore it had no jurisdiction to adjudicate in the suit.
3. That the decision by the High Court that it lacks jurisdiction to entertain a case cannot be overruled by the same High court and that it is only the Court of Appeal upon an appeal that can correct the error in such decision.
According to the learned SAN it is not a matter of doing justice or whether or not the court of Appeal will arrive at the decision that the High court was wrong in declining jurisdiction.
4. That the circumstances in which a High Court can set aside its own decision include when the judgment is obtained by fraud, when it is a nullity or when it is obvious that the court was misled into giving a consent judgment under a mistaken belief that the parties consented thereto and where the judgment was given without jurisdiction; and that non of these circumstances apply to the decision of 20-3-2000.
5. That the trial court decision was based on the law as it was prevailing at the time and that since the law that applies to a given transaction is the one then prevailing it will be wrong to regard that decision a nullity because the law has now changed. According to him, the relevant fact is not whether the decision of C. J. Okoli J., (as he then was) was right or wrong at the time the application to relist was made, but whether at the time of rendition of the decision, it was validly made having regard to the State of the law. If this is accepted, as indeed it should be, then the subsequent decision of the Supreme Court which altered the existing order will not have the effect of nullifying the decision validly made. It will have the effect of rendering the decision wrong in law, capable of being corrected on appeal, but not voided.
To maintain that the decision which was made on an issue of law was void, meant that no decision was at all rendered by C. J. Okoli J., (as he then was).
6. The Learned Senior Advocate contended that the ruling of the High Court of 20-3-2000 was not set aside and that what the trial court did on 27-7-2000 was to relist the suit struck out. He then submitted that without first setting aside the ruling declining jurisdiction, no valid order can be made relisting the case struck out for want of jurisdiction. Another argument of the Learned Senior Advocate for the appellant is that Order 24 Rule 16 of the 1988 Anambra State High Court Civil Procedure Rules under which the application for leave to relist was made, only applies where the suit was struck out on the ground of non-appearance of both parties or the plaintiff.
7. That the consolidated suits here were not struck out for the reason of non appearance of any party. They were struck out due to lack of jurisdiction of the trial court, therefore Order 24 Rule 16 does not empower the High court to relist suits struck out for want of jurisdiction of the High court.
8. That the reliance by the Respondents on "inherent powers" of the court, does not improve the case. A court cannot be surreptitiously clothed with jurisdiction to exercise appellate authority over the decision of a Court of coordinate jurisdiction. Inherent powers cannot be exercised in a manner which creates a jurisdiction that was not vested by statute.
Learned counsel for the respondents has argued in reply that -
1. A court had inherent power to revoke its order given in default, without basis, jurisdiction or competence.
2. a wrong decision or one given contrary to law or one that wrongly interprets a statute "is a decision given without basis or competence and need not be obeyed in western world, except that here it is to be set aside to keep the record straight."
3. when a decision of court is given contrary to the provisions of law, per incuriam, the same court that gave the decision can revoke it and where revoked everything based on it will collapse because something cannot be placed on nothing and be expected to stand. It will crumble.
4. Since the Supreme Court decision upon which the trial court relied on to decide that it had no jurisdiction to entertain the suits had been overruled by the same Supreme Court, "there is nothing left on which the order of striking out would be based or sustained hence it would crumble and collapse on its own and going to court to so declare it is a matter of formality and as such there is nothing preventing the court from making fresh an order relisting the suit struck out on the basis of the decisions given per incuriam."
I will now consider the merit of the above arguments of Learned counsel on both sides.
I agree with the Learned Senior Advocate for the appellants that the order of the trial court on 20-3-2000 striking out the consolidated suits was the consequence of the decision of the trial court that it lacked the jurisdiction to entertain the subject matter of the suits. The trial court first specifically found that Igboukwu where the Suitland is situate is a non-urban area. On the basis of this finding, it held that it had no jurisdiction to entertain matters relating to a land in a rural area following the Supreme court decision in OYEDIRAN v. EGBETOLA (1997) 5 NWLR (PT.504) 122 which held that by virtue of S. 41 of the Land Use Act 1978, it is the customary court and not the High court of a state that has the jurisdiction to entertain and determine claims over land in rural areas. It then struck out the suits following its decision that it lacked the jurisdiction to entertain same.
It is not open to dispute that an order striking out a suit is a consequential or resulting order that naturally flows from a decision of a court that it has no jurisdiction to entertain the suit. By its nature, it is not an independent order that originates and exists by itself. It is dependent on and derives from some decision of a court that has not determined the merit of the real issues in controversy in the suit. See Ugwu & Ors v PDP & ors (unreported decision of this court in Appeal No CA/E/259/2012 delivered on 8-3-2013)
I agree with the submission of the Learned Senior Advocate for the appellant that the trial court in its ruling of 29-10-2007 did not set aside its decision of 20-3-2000 that it had no jurisdiction to entertain the consolidated suits as they related to land in a rural area.
A decision of a court (whether wrong or right) remains valid and subsisting until set aside by a court that has the jurisdiction to do so. See Jimoh & ors v Akande & Anor (2009) 5 NWLR (PT 1135) 549
Therefore, I agree with the submission of the Learned SAN for the appellants that in the face of a valid and subsisting decision that the trial court lacks the jurisdiction to entertain the consolidated suits, no valid order can be made relisting the same suits to the cause list of the court that has been adjudged has no jurisdiction to entertain them.
One of the main issues in controversy from the arguments of counsel in this appeal is the legal effect on the trial court's decision of 20-3-2000 of the departure by the Supreme Court from its decision in OYENIRAN v. EGBETOLA (1997) 5 (NWLR) (PT 504) 122 that the jurisdiction under S. 41 of the Land use Act to entertain claims relating to land in rural areas belongs to Customary courts and not State High court and that therefore State High courts lack jurisdiction to entertain such claims. The trial court had on 20-3-2000 relied on this Supreme Court decision to decide that it had no jurisdiction to entertain the consolidated suits relating to Land in a rural area and struck same out. Shortly after this trial court decision, the Supreme Court in the same 2000 in ADISA v. OYINWOLA (2000)10 NWLR (PT 674) 116 expressly departed from its earlier decision in OYENIRAN v. EGBETOLA and other cases, holding that a State High court also has jurisdiction to entertain claims relating to land in rural areas. Obviously, the decision to relist the suits struck out on 20-3-2000 by the trial court on the basis of OYENIRAN v. EGBETOLA, was based on the changed position of the supreme court in ADISA v. OYINWOLA.
Learned Counsel for the respondent has argued that the legal effect of this departure by the Supreme Court from OYENIRAN v. EGBETOLA is that it rendered the trial court's order of striking out on 20-3-2000 baseless or incompetent or a nullity. The Learned Senior Advocate for the appellant argued that it may well be a wrong decision but it is not a void decision.
My view on the matter is that the decision of the trial court of 20-3-2000 is neither wrong nor void. The changed position of the Supreme Court in ADISA v. OYINWOLA did not render it baseless or incompetent or a nullity. I agree with the submission of the Learned SAN for the appellants that the proper question is whether the decision of 20-3-2000 was correct as at then having regard to the prevailing judicial authority or the state of case law then. The most fundamental methodology of administration law in our country, as in most legal systems particularly the common law based systems, is stare decisis, the policy or legal principle which requires courts to follow judicial precedents established by previous decisions. Courts are mandatorily bound to follow the decisions of superior courts that are higher than them in the judicial hierarchy. All courts are bound to follow Supreme Court decisions in cases that are similar to the ones before them. It will amount to a very serious error of law for a court to refuse to follow the judicial precedent of a superior court higher in the judicial hierarchy in a case whose facts are obviously basically similar to the facts of the case before it. It is the kind of judicial attitude that is viewed, across jurisdictions, as a deliberate refusal to follow the law. Whatever different views a judge may hold as to how the law was applied to the facts in the precedent case, he or she is bound to follow the judicial precedent of the Supreme court or in the absence of a Supreme Court precedent, that of a superior court higher in the judicial hierarchy, provided the facts of the present case and that of the precedent case are basically similar. The mandatory duty to follow judicial precedent is in the public interest. It ensures that the adjudicatory process is organized and orderly. It ensures that the judicial application of law to facts is orderly and consistent and thereby makes the law more certain, predictable and responsive to the changed circumstances and expectations of the society. It helps to harmonize judicial opinion and ensure an orderly change of such opinion. The great success of the policy of stare decisis as a very reliable adjudicatory process for centuries, has attracted its application even in Roman Dutch based legal systems in varying degrees.
In any case our indigenous traditional adjudicating system is precedent based. It will be dangerous to encourage derogations from the principle of stare decisis. The dis-equilibrating effects can better be imagined. Suffice it to say that it will certainly result in the failure of the judicial process, a failure of the legal system and the resulting collapse of the state structure. These consequences which may appear remote can occur as a direct result of such derogations. I may have veered off a little far in restating the principle of stare decisis, I think that this serves to emphasize that the trial court acted in accordance with law by following the decision of the Supreme court in OYENIRAN V. EGBETOLA (supra) which stated the prevailing judicial view on which court had the jurisdiction to entertain claims relating to land in rural areas having regard to S. 41 Land Use Act and S.236 of the 1979 constitution. Since OYERNIRAN v. EGBETOLA represented the existing law on the point at the time, the trial court would have acted contrary to law if it had refused to follow it.
It is obvious that following the decision of the Supreme Court in ADISA V. OYINWOLA, the law on the point changed. With this change, the previous decisions of courts that then rightly followed the Supreme Court decision in Oyeniran v Egbetola cannot be regarded as now wrong or invalid. They will remain correct and valid until they are set aside by a court that has jurisdiction to do so' in accordance with the new Supreme Court decision and upon a valid and due legal process challenging such decisions. The Supreme Court decisions and any other final judicial determinations during that time will remain valid and binding on the parties to each case. They will not automatically cease to have effect following the new Supreme Court decision.
When the Supreme Court departs from its earlier decision on a point, the departure does not operate to generally overrule and nullify all previous decisions that followed the earlier decision it has departed from. The departure serves to chart a new direction to be followed without affecting the previous status quo. If the new decision is one on procedure including venue, pending and new cases at all levels will now be decided in accordance with the new decision. If the new decision applies the law on the existence of rights, interests and obligations differently, new and pending cases will be decided according to it depending on when the cause action arose or when the right, interest or obligation came into being. The general principle of law is that a change in law does not result in the nullification of rights and interests based on the previous law. That is why amending or repealing legislations provide for the saving of such rights and interests including ongoing situations that originated on the basis of the old law. On the basis of this general principle, it is the law prevailing at the time the right or interest accrued or at the time a situation arose and not the new law that determines its validity. In the light of the foregoing, I hold that the Learned respondent's counsel reliance on the principle of ex nihilo nihil fit as espoused by the Legendary Lord Denning in MACFOY v. UAC (1962) AC, has no basis here.
His entire arguments in the respondents brief which proceeds on the assumption that the trial court's decision of 20-3-2000 is void, incompetent or baseless therefore collapse.
Let me now consider if the trial court had the jurisdiction to set aside the decision of 20-3-2000 or relist the suits struck out as a result of that decision.
The trial court held that-
"So the question still remains - Even if the supreme court in ADISA v. OYINWOLA had overruled itself in SALATI v. SHEHU, noting that the decision in SALATI v. SHEHU was made per in curiam, would this court still decline jurisdiction to relist the case on the grounds that it is functus officio and cannot sit on appeal over its final decision. How final is this final decision. The case was not heard on its merits. If this court rules that since the court declined jurisdiction and struck the case out, the only option to the applicants is to go on appeal, the appeal court would certainly return the case to the High court for trial on its merit because by reason of ADISA V. OYINWOLA, v. this court has jurisdiction to try the case. So why should this court rule that the decision of Okoli J was a final judgment nullifying the meaning of S. 241(1) CFRN 1999. The respondents filed a counter-affidavit of 6 paragraphs in opposition. Both counsel filed written address.
I must note that as at the time the motion for relistment was filed in the year 2006, the position of the Law had changed since the year 2000 with the decision of the Supreme Court in ADISA V. OYINWOLA overruling itself in SALATI V. SHEHU at cetra. Ruling that the decision of Okoli J was a final judgment and sending the parties to the Court of Appeal Enugu would attract the same criticism of the Court of Appeal Enugu like the one made by Olagunju JCA in OKONKWO v. OKONKWO (2004) 5 NWLR (PT 865) where the Learned JCA observed that such a stand in view of ADISA V. OYINWOLA, would amount to a mere platitude portraying a retrograded view of the Law and feigned by self-serving solicitude for justice, to disguise this partisan stand on the issue.
Why must I send the case to the Court of Appeal Enugu knowing fully well that that Higher Court would, following ADISA V. OYINWOLA, send it down to the High Court for trial. With ADISA V. OYINWOLA, the decision of Okoli J in this case collapsed, and I do not have to fear being branded a Judge. This is because the decision of Okoli J, as at the time of this motion for relistment, stands on nothing and even the respondents knew it is bound to fail but want this court to send the applicants to the Court of Appeal Enugu where the applicants will cite ADISA v. OYINWOLA and the respondents shall not oppose and the Court of Appeal Enugu will rule that the High court now has jurisdiction and then send the case down to the High court for trial. This is a long process journey to nowhere.
In view of the above I am satisfied that I should grant the reliefs sought by the applicants. The motion hereby succeeds. I grant leave to the Registrar of the Court to relist this case forthwith."
It is clear from this part of the judgment of the trial court that it did not agree that its decision of 20-3-2000 is a final decision. The Learned SAN for the appellants has argued that it was a final decision. Learned Counsel for the respondents did not express any opinion on this point.
What is clear about the trial court's decision of 20-3-2000 is that it determined [it] at an interlocutory stage, the issue of whether the trial court had the jurisdiction to entertain the suits and did not determine the merits of the claims in the suits, so that the rights and interests of the parties in the Suitland were not determined.
The decisions of the Supreme Court are not unanimous as to whether such a decision is final or interlocutory. A plethora of decisions of the Supreme Court including ALOR & ANOR v. NGENE & ORS (2007) 2 SC 1, WESTERN STEEL WORKS LTD & ANOR V. IRON & STEEL WORKS UNION OF NIGERIA & ANOR (1986) NWLR, (PT 30) 617, OMONUWA V. OSHODIN & ANOR (1935) NWLR (PT 10) 924, GOMEZ & ANOR V. CHERUBIM & SERAPHIM SOCIETY & ORS (2009) 10 NWLR (PT 1149) OLATUNDE V. OAU & ANOR (1993) 4 SC 91 AND EBOKAM V. EKWENIBE & SONS TRADING CO. LTD (1999) 7 SC (PT.1) 39 hold that what determines if a decision is final is not that it has finally determined an issue, rather it is that it has finally determined the rights of the parties in the claim or merit of the case. Some decisions of the Supreme Court including NUHU v. OGELE (2003) 11 SC 128, ONYEBUCHI V. INEC (2002) 4 SC (PT.1) 27 hold that a decision by a court on an issue, which that court cannot revisit, reopen or reconsider is a final decision on that issue. It matters not that the decision is made at the interlocutory stage or at the conclusion of the proceedings or that it does not finally determine the merit of the case or the rights and interest of the parties in the case.
In keeping with the law that when this court is faced with two or more conflicting decisions of the Supreme Court, it is entitled to choose which to rely on this court will prefer to follow the second group of decisions. This is because the notion of the nature of a final decision espoused in this second group of decisions is all-embracing of all decisions that cannot be judicially reopened or revisited by the court that made them. This includes decisions that determine specific issues that arose in the case at interlocutory stage and decisions that determine the merit of the case and the rights and interests of the parties in the case. What makes the decision final as far as the issue it determines is concerned is that the issue cannot be judicially revisited or reopened by the same court that made the decision. The decision on the issue can only be reconsidered or revisited by an appellate court on an appeal against that decision.
"the test whether an issue has been finally decided for the purpose of establishing a valid plea of issue of res judicata does not necessarily always need to be tied to the question whether or not there has been an adjudication of substantive suit on its merits. Since the question whether or not a court can re-open in a later case, or even at a later stage in the same case, a question it has decided on a previous occasion arises in a variety of circumstances, the test most adequate for all occasions, is whether the court which gave the decision can vary, reopen or set aside the decision. If it cannot, the decision in that context is final."
This court in UGWU & ORS V. PDP & ORS (UNREPORTED JUDGMENT IN CA/E/259/2012 DELIVERED ON 8-3-2013) held that where a case is struck out because its subject matter is not within the jurisdiction of a court, it cannot be reopened by the same court. See also the decision of this court in AIB LTD V. PACKOPLAST NIG. LTD (2004) 3 NWLR (PT. 859) 129 AT 143.
A party dissatisfied with a final decision of a court, can only appeal against it to an appellate court that has the jurisdiction to entertain the appeal. Such a party cannot come back to the court that gave the decision, urging it to reconsider the decision because it is contrary to law or wrong for any reason. The court on its part will lack the jurisdiction to judicially re-examine or reconsider its earlier decision on the issue. There is no part of the 1999 constitution and there is no statute or Rules giving the High Court the general jurisdiction to reconsider any of its earlier decision on the ground that it was wrong in law or fact. The 1999 constitution only provide S. 241(1) and 242 for appeals to this court from decisions of the High court. It is glaring that the trial court in this case lacked the jurisdiction to reopen and reconsider the issue of whether it had the jurisdiction to entertain a suit relating to land in a rural area. It had become functus offico in respect of that issue. As held by the Supreme Court in SANUSI V. AYOOLA & ORS (1992) 11/12 SCNJ 142 it is a well settled and fundamental principal of law that a court on disposing of a cause before it renders itself functus officio. It ceases to have jurisdiction in respect of such a case. It cannot assume the status of an appellate court over its own decision, except there is statutory power to do so.
The attention of this court has not been drawn to any statute that gave the trial court jurisdiction to reconsider or review its decision that it lacks jurisdiction to entertain a matter. The trial court did not rely on any statutory provision for its action. Order 24 Rule 16 of the Anambra State High Court (Civil procedure) Rules 1988 under which the application for leave to relist was brought enables the trial court to relist suits struck out under Order 24 Rules 11, 12,13 and 14 of the same 1988 Rules for non appearance of both parties or the plaintiff. There is nothing therein permitting the court to relist a suit it had struck out following its decision that it had no jurisdiction to entertain same. The issue can only be reopened by way of an appeal to this court. The jurisdiction to reconsider, review and set aside the trial court's decision of 20-3-2000 belongs to this court upon such an appeal to it. The trial court cannot review its decision and set same aside for the reason that it has become obvious that it was wrong and that if it comes on appeal to this court, the appeal would certainly succeed and this court would certainly set it aside and remit the case back to the trial court for trial. It cannot for this reason exercise the powers of the Court of Appeal. If the trial court realizes that for some reason the decision or any part thereof is wrong, it should leave the error for the Court of Appeal to correct. It is obvious from the part of the ruling of the trial court reproduced above that the trial court decided to relist the case to avoid the circuitous journey of going to the Court of Appeal and coming back to the High Court to try the merit of the case. In its mind, it felt that there was no need wasting time going all the way to the Court of Appeal and back as the same outcome will be achieved. As the Supreme Court held in BAKARE v. APENA & ORS (1986) NWLR (PT.33) 1
"a Judge will not adopt a method of adjudication, alien to procedural rules of justice upon a plea that he is actuated by the noblest and an impassioned zeal for justice, which propels him into bizarre methods of arriving at that justice, holding as it were, as a justifying Machiavellian principle, that the end justifies the means."
A court cannot exercise a jurisdiction it does not have for the purpose of doing substantial justice. The need to do substantial justice is no excuse for the court to exceed its jurisdiction. It cannot do substantial justice when it acts in excess of jurisdiction, because whatever a party secures from that exercise is a nullity.
Learned counsel for the respondent at page 2 under the heading, "Introduction/Summary of relevant fact," made a statement of fact that raised the question of whether, the respondents as defendants were in law the proper party to apply to relist the plaintiffs suit that was struck out. The said statement of Learned Counsel reads thus-
"Pertinent to point out is the fact that the appellants are the plaintiff in one of the consolidated suit namely AA/6/75 hence it is their case struck out that was relisted yet they are appealing against the said order relisting their case showing that they have something they are hiding because appealing against the order relisting their case shows that they don't want the case to go on or that they are intentionally delaying the hearing and conclusion of the case."
This statement highlights the unwillingness of the plaintiffs to sue. After their suit No AA/16/75 was struck out on 20-3-2000, they took no steps to sue afresh in respect of the same cause in a Customary Court, or even in a high court following the Supreme Court decision in ADISA V. OYINWOLA. It was obvious they had abandoned the idea of maintaining that action. The application by the defendants to relist the plaintiffs' suit that was struck out amounts to forcing the plaintiffs to maintain an action they have chosen to abandon. The plaintiffs' opposition to the relistment at the trial court and this appeal confirm their refusal to continue that suit. This situation raises the question of who as between the plaintiffs whose suit was struck out and the defendants, is the proper party to apply for the relistment of the suit? The answer is obvious. It is the plaintiff. It is only the plaintiff who filed the suit that was struck out that can apply for the relistment of the suit. The defendants have no right to apply for its relistment, since they did not file the suit- If the defendants had filed a counter claim to the plaintiff's claim and both had been struck out, the defendants can apply to relist only the counter claim.
The plaintiffs are not bound to continue an action filed by them. If they choose not to go on with the suit, they cannot be forced to continue. They are the owners of their right of action. They have chosen not to continue the exercise of that right in pursuing the said cause of action. The defendants have no right to complain as they have no interest that is affected because of the refusal of the plaintiffs to exercise their right of action. The application by the defendants to relist the plaintiffs' suit that was struck out is rather strange and in my view incompetent. Not even the consolidation of the plaintiffs' suit No AA/16/75 and that of AA/19/76 entitles the defendants to apply for the relisting of the plaintiffs' suit after the two were struck out.
It is trite law that the consolidation of two or more suits does not destroy the separate existence of the consolidated suits and fuse them into one suit. In spite of the consolidation, they remain distinct with separate existence and must be determined separately. The purpose of the consolidation is to avoid multiplication of trials on the same set of facts and issues and determine the suits in a single trial on the same facts and issues to save time and costs. See NASR v. COMPLETE HOME ENTERPRISE (NIG) LTD (1977) 5 SC (REPRINT) 1, IFEDIORAH v. UME (1988) NWLR (PT.74) 95 and the recent decision of this court in ILONUBA & ORS V. ANOSIKE & ORS (UNREPORTED DECISION IN CA/E/238/2007 DELIVERED ON 28-3-2014). In their separate existence, they do not have the same fate. If the plaintiff in one of the suits decides not to continue his case, the other suit will continue.
The defendants were at liberty to apply to relist their own suit No AA/19/76 but not that of the plaintiffs.
Let me also consider the submission of the Learned SAN for the appellants that the fact that the respondents allowed a period of over 6 years to elapse after the decision in ADISA v. OYINWOLA before applying for relistment of the suits struck out is a matter which must be given serious consideration. I agree with this submission. The suits were struck out on 20-3-2000. ADISA v. OYINWOLA was decided on 27-7-2006. If this decision was the basis for the application to relist the suits, why was it not brought immediately after the decision. The defendants went to sleep for six years and woke up one day to bring the application. Assuming, they were not aware of the decision in ADISA V. OYINWOLA, why did they not file their suit in the customary court having the jurisdiction to entertain their suit.
Considering the informal nature of customary court proceedings, devoid of time wasting procedures that characterize non Customary courts, the suit would have been long determined within a few months of the filing of the suit' so that if the defendants had promptly, let say in April 2000, filed their suit in the appropriate customary court, trial and determination of the suit would have been concluded within that year and any appeals arising from the customary court decision would have been concluded by now. The failure of the defendants to promptly sue afresh in the Customary Court, or, immediately after the ADISA V. OYINWOLA decision in July, sue afresh in the High Court or appeal against the trial court decision of 20-3-2000 for six years shows that they had no interest in continuing the suit in respect of their cause for action in the struck out suit. When the defendants belatedly decided to continue their suit, they had the option of filing a fresh suit or appealing against the trial court's decision of 20-3-2000. It is obvious that filing a fresh suit would have been an easier option for them, barring issues of limitation of action, because the option of appeal at the time would require applying for extension of time to appeal and the attendant burden of showing good and substantial reasons for the failure to appeal within the prescribed time, and grounds of appeal that prima facie show good cause why the appeal should be heard. If the application is granted then the notice of appeal will be filed, record of appeal compiled and the appeal heard and determined.
The defendants did not choose any of the above two options. They rather strangely, opted to apply to the same court that struck out the suits, following its decision that it lacked jurisdiction to entertain them, to relist them. It is obvious from the totality of the foregoing that this is a very wrong option, as the trial court lacks the jurisdiction [to] relist the suits in the face of its subsisting decision that it has no jurisdiction to entertain the suits and lacks the jurisdiction to set aside its said subsisting decision.
For all of the above reasons, I resolve the sole issue in this appeal in favour of the appellant. I therefore hold that the appeal has merit and is accordingly allowed. The decision of the High court of Anambra State, per C. O. Amechi J at Aguata Judicial Division in relisting suits Nos. AA/16/75 and AA/19/76 on 29-10-2007 is hereby set aside. The motion on notice dated and filed on 7-3-2006 for an order granting leave to the Registrar of the trial court to relist the said suits is hereby struck out as it is incompetent and the trial court lacks the jurisdiction to entertain and determine same.
The respondents shall pay cost of N100,000 to the appellants.
ADZIRA GANA MSHELIA, J.C.A:
IGNATIUS IGWE AGUBE, J.C.A:
I have read in advance the erudite and comprehensive Judgment just delivered by my learned brother and am in total agreement with his reasoning and conclusions on the authorities cited from both the Supreme Court and this Court, that where the Court of trial struck out the Respondents' Suits for want of jurisdiction, the alternatives open to the Respondents were to either initiate a fresh suit in the Customary Court which had jurisdiction to adjudicate on the subject matter where the Supreme Court had overruled itself on the subject matter or to proceed on Appeal where the Appellate Court would regularize the position of the law as has been pronounced upon by the Apex Court.
Not having exploited any of the options afore-stated as available to the Respondents herein, the lower Court could not have granted their Applications relisting the Suits earlier struck out.
It is for the above reasons and the fuller reasons advanced by my Lord in the Lead Judgment that I also allow the Appeal and set aside the decision of the learned trial Judge per C. O. Amechi, J. sitting at the Aguata Judicial Division relisting Suits Nos. AA/16/75 and AA/19/75 on the 29-10-2007. I also strike out the Motions granting the Respondents the leave through the Registrar of the trial Court to relist the above mentioned Suits, for being in competent and for want of jurisdiction of the lower Court.
I abide by the order as to costs as made by my Noble Lord.