By Ayodele Popoola
Consolidation of cases 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. It occurs where the trial Judge is satisfied that the issues in the suit can be resolved in one proceeding rather than in separate proceedings and all parties to the actions must consent to the consolidation if there are different defendants sued by the same Plaintiff/Claimant, except the issues to be tried are similar or identical.
The action or process of combining a number of things into a single more effective or coherent whole.: the process of uniting: the quality or state of being united is referred to as consolidation.
Consolidation of actions or suits involves the joinder of two or more distinct and separate actions in order to be tried simultaneously in one proceeding. The resolution of the issue in one case applies mutatis mutandis to all other cases in the consolidated suits. At times, judgement in one suit may also be the same in all others.
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.”
“The general rule is that where two or more cases or suits are consolidated and heard or tried together by a court, each of them would retain its distinct and separate identity for the purposes of determination of the issues canvassed therein. Thus a court is required to render or give judgment separately for each of the consolidated cases, because consolidation is merely ordered for convenience and to save time in the process of trial”.
Consolidation of cases occurs where the trial Judge is satisfied that the issues in the suit can be resolved in one proceeding rather than in separate proceedings and all parties to the actions must consent to the consolidation if there are different defendants sued by the same Plaintiff/Claimant, except the issues to be tried are similar or identical.
Conditions under which cases may be consolidated:
1. If the relief sought are the same in all the actions, and can therefore 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 parties or different parties.
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 case 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.
Without much ado, there must be an end to litigation and as such, as it is often says:” ‘justice dalayed is justice denied’, many a litigant usually complain bitterly about the sluggishness of our judicial system, as numerous of cases are pending in our courts for donkey years without being heard. Thus, the act of consolidating cases comes into being, more particularly as contained in our various rules of courts across the country in order to cushion the effect of such delay and ensure a speedy dispensation of justice.
However, it is worthy of note to know that not all cases can be consolidated or merged, and as such, there are certain conditionalities or parameters that give birth to consolidation of cases, these are:
1. The parties must be the same
2.The subject matter must be the same.
3.The cases must have emanated from the same cause of action or have a nexus that connect the same.
4. The court must have jurisdiction to entertain both cases, that is to say where the court in which those cases are sought to be consolidated lacks jurisdiction in respect of a particular claim, party or the relief sought such cases cannot be consolidated.
In the light of the above, it is integral to know that in order to minimize the multiplicity of cases as well as wasting the precious time of the court, sometimes, the court on its own motion often advises parties to consolidate matters or applications as practicable.
Case consolidation can be said to be 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. This definition was given judicial blessings in the case of Chief Ujile D. Ngere & Anor V. Chief Job William Okuruket ‘XIV’ & 3 Ors, (LERSC.54/2012, SC.335/2012.
On the conditions to be satisfied in consolidating suits, the courts have held overtime, as it held in the case of KURANGA &ORS VS. GEORGE & ORS (CA/L/314/2009) that it is the practice in our Courts that suits may be consolidated.
The court in its pronouncement on conditions of case consolidation indicated that Consolidation may be ordered if the trial Judge is satisfied that the issues in the suit can be resolved in one proceeding rather than in separate proceedings. This decision is arrived at, if the learned trial Judge is satisfied that:
(a) Some common questions of law or fact arise in both or all the causes or matter or
(b) The rights to relief are claimed in respect of or arise out of the same transaction or series of transactions or
(c) For some other reasons, it is desirable to make an order under the Rule. See Iloabachie v. Ebigbo (2000) 8 NWLR Pt. 668 pg.197, Okwuagbala v. Ikwuem (2010) LPELR 2538.
Similarly, Ikongbeh JCA as he then was held in the case of Alaribe v. Nwankpa (1999) LPELR 6742 that: “two or more suits may be consolidated to assume a new character, giving the trial Judge the power to treat them together and be seized of the issue involved in the consolidated action.
The Court further reiterated that it must be pointed out, however, that consolidation is merely for the purpose of trial in order to save time and costs, which would otherwise be invoiced if these same issues have to be dealt with in a second trial, with the same evidence taken all over again, “See Ladiju v. Odulaja (1943) 17 NLR pg.15, NASR v. Complete Home Enterprises (Nig) Ltd (1977) SC pg 1.
Over case consolidation, the court also raised a caution as seen in the case of Suleiman v. Zakari (2 9) LPELR 4984 that: “It should be reiterated, that for the avoidance of doubt, that its trite and Fundamental Principles that where actions, suits or appeals are consolidated by court or a Tribunal, as the case may be, each retains the separate and distinct existence thereof.”
Thus at the end of the joint trials or proceedings, a separate judgment must be given regarding each suit, action or appeal. The Court should not therefore determine one action and ignore the other.
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 simple 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.