Consolidation of two lawsuits is one of the pleas that may be raised at any stage of the proceedings by any party. It takes the form of a plea whereby a litigant asserts that the lawsuit is connected to another lawsuit that must be consolidated with it. The trial court also has the right to raise it of its own motion when it infers from the parties’ statements that the dispute between them is raised in another lawsuit and is connected to it (Sa'dun Naji al-Qashtini, Sharh Ahkam al-Murafa'at, vol. 1, 2nd ed., Baghdad, Matba'at al-Ma'arif, 1976, p. 242).

Article 75 of the Civil Procedure Law No. 83 of 1969 addresses this matter as follows: “Article 75: If it appears to the court that the lawsuit is connected with a lawsuit previously brought before another court, it may decide to consolidate the two lawsuits and send the case file to the other court, and the decision issued by the other court refusing consolidation shall be subject to cassation.”

“Connection” (or “joinder”) is a close link between two lawsuits that makes it appropriate, in the interests of the administration of justice, to bring them together before a single court to examine and decide them, so as to prevent the issuance of inconsistent judgments (Dr. Ahmed Abu al-Wafa). The matter has not been settled as to whether this plea is a formal or a substantive plea, but the preponderant view is that it is a formal plea that may be raised at any stage of the proceedings.

The Plea for Consolidation of Two Lawsuits Is Not a Matter of Public Policy

The text of the article is framed as discretionary (“If it appears to the court”), and any provision framed as discretionary rather than mandatory cannot be regarded as implicating public policy (Lafta Hamil al-Ajeeli, Sharh Ahkam Qanun al-Murafa'at al-Madaniyya, p. 203, Baghdad, Maktabat al-Sanhuri).

Conditions for Raising This Plea

The conditions for raising this plea are divided into general conditions and special conditions. The general conditions are those that the legislator required for any plea, whether formal or substantive. Paragraph 1 of Article 8 of the Civil Procedure Law provides: “1 - A plea is the bringing of a claim by the defendant that repels the plaintiff’s claim and necessitates its dismissal in whole or in part.” Paragraph 2 of the same article provides: “2 - A plea is subject to the same rules as the lawsuit, and it is required that it have a direct connection to the principal lawsuit.”

Accordingly, the general conditions that must be met for a plea are the conditions of the lawsuit, namely:

1. Capacity
2. Standing
3. Interest

These are the general conditions set out in the Civil Procedure Law, and there is no room to elaborate on them in this paper.

Special Conditions

1. Existence of a connection: This is what Article 75 provides—“If it appears to the court that the lawsuit is connected with a lawsuit brought…”. The legislator did not provide a specific definition of “connection,” leaving it to doctrine and judicial practice. Some commentators on the Civil Procedure Law have defined it as the close link between two matters such that they cannot be separated, which necessitates treating them as one matter.

   The Federal Court of Cassation, in its decision No. 190/Appellate/1969 dated 5/1/1970, held that the intended connection is that the cause, subject matter, and parties be the same. Judge Lafta Hamil al-Ajeeli held that the connection warranting referral of the lawsuit to another court does not require identity of parties, subject matter, and cause; rather, it suffices that there be identity of the parties or the subject matter or the cause. For example, if a husband brings an obedience (mutāwa'a) action against his wife in court, and the wife brings an action against her husband claiming maintenance, in this case it is permissible to consolidate the two lawsuits.

   This view is supported by the Federal Court of Cassation decision No. 5086/First Personal Status Panel/2010, quoted by Judge Jabar Alwan al-Mukhtar of the Court of Cassation: “The maintenance action has a close connection with the obedience action, which requires consolidating them.”

   Also, decision No. 496/Personal/1981 dated 8/4/1991, quoted by Judge Raheem Hassan al-Akeeli: “The action for separation brought by the husband due to his wife’s disobedience must be consolidated with the deferred dowry action brought by the wife against the wife due to the existence of a connection between the two actions.”

   However, sometimes the parties may be identical and yet the court will refuse to consolidate the two lawsuits, as the Court of Cassation held in its decision No. 166/First Personal Status/2009 dated 5/1/2009: “There is no connection between the dowry and the wife’s claim for her furniture.”

   As a general rule, the court is not obliged to grant a party’s request to consolidate two lawsuits, as it may find that the lawsuit sought to be consolidated with another has advanced through the procedures and is ready for decision, and that the request to consolidate is aimed solely at obstructing resolution of the lawsuit and prolonging it, and that the party has raised it belatedly in bad faith.

2. Both lawsuits must be pending

   That is, both lawsuits must actually exist and both be pending (Judge Medhat al-Mahmoud). It is not permissible to request consolidation if one of the two lawsuits has been decided, nullified, stayed, or left for review; consolidation is permissible in such cases only if proceedings are resumed in accordance with the law.

   The Court of Cassation, in decision No. 156/Real Estate/1967 dated 17/12/1967, held: “Since case No. … was originally being tried in absentia, it is therefore impossible to consolidate it with case No. … which had been stayed pending the presence of both parties.”

3. Both lawsuits must be before courts of the same grade and within the same judicial system

   This means it is not permissible to consolidate a lawsuit being heard by the Court of First Instance with a lawsuit being heard by the Court of Appeal in its original jurisdiction, even if the cause and the parties are the same. In this situation, it is permissible to deem the lawsuit before the Court of First Instance stayed pending the issuance of a decision by the Court of Appeal.

4. The court before which the earlier lawsuit is pending, and before which the two lawsuits will be consolidated, must have jurisdiction to hear both

   If that court lacks functional or subject-matter jurisdiction to hear both lawsuits or either of them, consolidation is impermissible because it would conflict with the rules of jurisdiction, which are matters of public policy. However, if the court lacks territorial jurisdiction and no objection to its jurisdiction was raised before entering the merits, its jurisdiction is established and it is deemed competent.

5. Both connected lawsuits must be subject to the same modes of appeal, time limits for appeal, and appellate forums

   This means that if consolidation would lead to multiple modes of appeal for the requests among the consolidated lawsuits, consolidation is impossible—for example, where the promisee of the transfer of ownership of a real property brings an action to vest ownership of the property in him, and the promisor brings an action against him seeking to prevent his opposition with respect to the property and to deliver it to him free of occupants.

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