By Bamidele Kolawole
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Case consolidation is the process by which two or more distinct actions pending in the same court are combined by court order and tried together simultaneously. This occurs when the trial judge determines that the issues in the cases can be effectively resolved in a single proceeding rather than in separate ones. If the cases involve different defendants sued by the same plaintiff/claimant, consolidation requires the consent of all parties, unless the issues to be addressed are similar or identical.
Without much ado, there must be an end to litigation. As the saying goes, “justice delayed is justice denied.” Many litigants often complain bitterly about the sluggishness of our judicial system, with numerous cases pending in our courts for years without being heard.
To address this issue, the practice of consolidating cases has been introduced, as provided in various court rules across the country, to mitigate delays and ensure the speedy dispensation of justice.
However, it is important to note that not all cases can be consolidated or merged. There are specific conditions or parameters that must be met for cases to be consolidated. These include:
1. The parties involved must be the same.
2. The subject matter must be identical.
3. The cases must arise from the same cause of action or have a clear connection.
4. The court must have jurisdiction over both cases. If the court lacks jurisdiction regarding a particular claim, party, or relief sought, such cases cannot be consolidated.
In light of the above, it is essential to minimize the multiplicity of cases and avoid wasting the court’s valuable time. At times, courts may, on their own initiative, advise parties to consolidate matters or applications where practicable.
Most undoubtedly, the whole essence of consolidating actions is to save time and costs.
In legal parlance, consolidation of actions is the process whereby two or more actions (law suits) before a court or multiple courts are joined together to become a single law suit and tried at the same time. An order for consolidation may be made in two or more law suits 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 even between different claimants and different defendants.
The guideline on the procedure of consolidation of actions is usually provided in the High Court rules of each State High Court. The process of consolidation starts when a party makes an application to the court to have two or more law suits consolidated.
Conditions for consolidation of cases:
1. Same issue: if it is discovered there are more actions pending before a court and the issues in the actions/cases are same, the court can make an order for consolidation of the cases sequel to an application made to the court for such and thereafter, the cases can be tried as one and determined at the same time.
2. Same parties: where it is discovered there are two or more actions between the claimant and the defendant pending before the court at the same time, an order for consolidation of the pending cases can be made by the court.
3. Same claimant but different defendants: if it is ascertained that there are pending actions filed by the same claimant against different defendants on same issues, an application for consolidation can equally be made. Under this, an order for consolidation will not be made unless with the consent of all the parties involved.
4. Different claimants but same defendants. Consolidation can equally be done in this regard and it won’t be done unless the parties consent to it. See Order 34 of the Ondo State (Civil Procedure)Rules
An application for consolidation can be made to the court in the instances cited above.
The rationale for consolidation is to save time and cost of both the disputing parties and the court. Preferably, why go through the process of duplicating justice when all the law suits can be heard once and justice dispensed once. It was wisely put by the Supreme Court in *Ume v Ifediorah (2000) FWLR (Pt.61) 1761* 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 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”.
The judgment of the court made thereafter binds all the parties, though a question may arise whether the court can deliver a single judgment for the consolidated cases. But that would be a discourse for another day.
Lawsuits can be consolidated where cases are similar in fact or in the legal issues presented before the court.
This means that the cases, when consolidated (by an order of the court), the matter usually involves same parties or issues. Therefore, case consolidation can occur when;
1. Cases are in the same court – It would be a waste of time and judicial resources to litigate separate cases which are almost exactly alike and flows from the same transaction in the same court.
Often times, courts would consider consolidating cases if it would reduce the chances of duplication or inconsistent ruling in the same jurisdiction.
2. Common Question of Law – cases that share a common question of law are often consolidated in the interest of justice and for efficiency in purposes. A question of law is one that can be decided simply based on interpreting the law and court opinions, and does not ask the court to play judicial fact-finding role in such a case.
3. Common Question of Fact – In many cases, there is a common question of fact that requires the court to act as a fact finder and weigh evidence. Consolidating cases with common question of fact saves the courts from rehearing the same factual issues over and over again.
In practice for instance, where the facts includes toxic tort cases (like suits for damages related to chemical spills), for an order of consolidation to be made on the suits filed by separate defendants, evidence linking the injuries to all the defendants would be heard in respect of the claimant’s tortious liability.
Basically, when cases have common question of law and fact before a law court, they are more likely to be consolidated.
Consolidation is appropriate where proceedings concern the same or similar questions of fact and law and can be undertaken at the request of either the claimants or the respondent State.
Consolidation is only possible where there is evidence of the parties’ consent to and consensus on such treatment even if implicit. Hanno Wehland explains, “It is generally acknowledged that consolidation or quasi-consolidation mechanisms can only be applied with the consensus of all the parties concerned.”
Consolidation is different from joinder, which allows a third-party to join an existing arbitration proceeding, and “multi-party claims” or “mass claims,” which allow two or more claimants initiate a single proceeding against the same respondent by jointly filing a single request for arbitration.
Where consolidation of cases is requested, it must verify that conditions are met and then balance its advantages and disadvantages to the case.
Right to be heard is one of reasons for consolidation of claims. The parties should have an opportunity to be heard on the consolidation request.
The claims on which the consolidation request should have a question of law or fact in common. if the party can show that the question will be raised with a “degree of certainty” in the other proceeding that is the subject of the request for consolidation.
Consolidation should also be ordered “in the interest of a fair and efficient resolution of the claim.” It is an “objective and fact-driven” standard and a balance should be preserved between the parties.
Consequences of consolidation can vary depending on whether it was fully or partially upheld. Partial consolidation raises the question whether, and if so, to what extent, the individual claim tribunals should adjourn the proceedings before them, pending resolution by the consolidation tribunal. The consolidation tribunal in the softwood lumber case has raised but not examined the question.
Conversely, in cases of full consolidation, the consolidation tribunal takes over the newly consolidated case and the original tribunals cease to function. Upon consolidation, the consolidation tribunal has the discretionary power to determine the conduct and sequence of the consolidated proceedings and decide on the matter. Nonetheless, the original tribunals’ jurisdiction can still be contested if the parties are not time-barred to object their jurisdiction.