Benin Rubber Producer’s Cooperative Marketing Union Ltd Vs S.O. Ojo (1990)

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(d)……………..such dispute shall be referred to the registrar for decision. Without prejudice to……………..”|But section 51 (2) of the same law went on to provide as follows||”51 (2) The registrar shall on receipt of such reference-||(a) decide the dispute; or (b) subject to the provisions of any regulations, refer it for disposal to an arbitrator.”||Of relevance also are the provisions of sections 51 (4), 51(5) (a) and 51 (6) of the said law which provide thus –||”

51 (4) The registrar may of his own motion or on the application of a party to a reference revise any decision thereon by an arbitrator to whom it was referred.||51(5) (a) Any decision given by the registrar under sub-section (2) or under sub-section (4) shall, save as otherwise provided in sub-section (6), be final and shall not be called in question in any Court.

|(b)….|(c) …|(6) Any party aggrieved by any order of the registrar made under sub sections (4) and (5) may appeal to the appropriate authority within 21 days from the date of such order and the decision of the appropriate authority shall be final and conclusive.”|It is not in dispute that the appellant is a Co-operative Society, a Co-operative Marketing Union registered under section 7(1) of the Co-operative Societies Law, Cap. 45, Laws of Bendel State of Nigeria, 1976.

It is also clear, pursuant to section 51 (1) (c) of the said Law, that where a dispute arises between a society, its committee or any officer, agent or servant of the society, as in the present case, such dispute shall be referred to the Registrar of the Co-operative Society, in this case, the 1st defendant, for decision. Section 51(6) provides that the decision of the Registrar under sub-section (2) or sub-section (4) shall, save as otherwise provided in sub-section (6), be final and shall not be called to question in any Court. Section 51 (6) on the other hand, provides that any person aggrieved by any order of the Registrar may appeal to the appropriate authority, in this case the Commissioner for Trade and Industry, within 21 days from the date of such order and the decision of the appropriate authority shall be final and conclusive.

||I have given a close consideration to the submission of the learned Senior Advocate of Nigeria and, with profound respect, find it difficult to accept that this is a dispute in which it was mandatory that the same must firstly be referred to an arbitration before the respondent would be entitled to seek whatever reliefs that were open to him by action.

Section 51 (1) and (2) of the Co-operative Societies Law, Cap. 45 empower the Registrar to decide such disputes himself or, subject to the provisions of any regulations, refer them for disposal by an arbitrator. It seems to me plain that the decision to refer a dispute to an arbitrator is entirely that of the Registrar who, by the letters of the law, is under no compulsion to refer all disputes to an arbitrator for disposal.

|In the present case the registrar on the dispute being referred to him decided, as he was entitled to do, to look into the matter and decided the same himself. I entirely agree with the trial court that to the extent that the matter arising from the sale of the appellant’s vehicle amounted to a dispute, the law imposed no responsibility on the respondent to have the dispute determined firstly by an arbitrator as a condition precedent to seeking any remedies which may be open to him in respect of the vehicle by action.

I also endorse the view of the court below on the same issue when in effect, it affirmed the said opinion of the trial court. In my view, the appellant’s contention that failure by the respondent to have the dispute referred to an arbitrator before the present suit was filed is fatal to the action is clearly not backed up by the law and cannot be sustained.

Accordingly, the decision of this court in Eguamwense v. Amaghizemwen, supra, heavily relied upon by the appellant seems to me irrelevant and inapplicable to the facts of the present case.||There is next the further submission on behalf of the appellant that another condition precedent to the filing of the present action which the respondent failed to comply with was failure to wait for the findings of the Commissioner for Trade and Industry before he filed this action.

The evidence before the court is that the respondent duly appealed to the Commissioner as required by law. However, because the Commissioner advised him 10 wait for three months, he had no option but to go to court, having regard to the provisions of the Public Officers Protection: Law of the defunct Bendel State of Nigeria. Under that Law the respondent was only allowed three months within which to file his action against the 1st defendant, a public officer, from the date his cause of action arose.

On the evidence, the stage at which he was advised to wait for another three months before the appropriate authority would be disposed to look into his grievance virtually coincided with the dying days of the period of three months within which he was entitled to institute his action pursuant to the provisions of the said Public Officers Protection Law.||More importantly however, there are the provisions of sections 6(6) (b), 236 and 274 of the Constitution of the Federal Republic of Nigeria, 1979.

The combined effects of these section of the 1979 Constitution is, subject to the other provisions of the said Constitution, to confer unlimited jurisdiction on the High Court of a State and all existing laws and/or any provisions in a State Law which are not in conformity with the provisions of the Constitution or tend to derogate from the powers of such Courts shall, to the extent of such inconsistency, be void. State Law or any provision of a State Law which purports to oust the jurisdiction of the State High Court is void as being inconsistent with the Constitution of the Federal Republic of Nigeria, 1979. See Bronik Motors Ltd and Another v. Wema Bank Ltd(1983) 6SC 158; (1983) 1 SCNLR 296; Military Governor of Ondo State and Another v. Victor Adewunmi (1988) 3 NWLR (Pt. 82) 280. In my view, therefore, the provisions of sections 51 (1) (a), 51 (1) (b) and 51 (6) of the Co-operative Societies Law, Cap. 45, Laws of the former Bendel State of Nigeria, 1976 which are State enactments must be regarded as void in so far as they purport to limit or oust the jurisdiction of the High Courts as therein provided contrary to the express provisions of the 1979 Constitution. Issue 1 is therefore resolved against the appellant.

Issue 2 questions whether or not there was a valid counter-claim before the Court. If, infact, there was a competent counter-claim before the Court, the appellant’s complaint is that the same was not considered in whatever form and that he was not therefore given a fair hearing by the two Courts, below.

||In this regard, attention must be drawn to the provisions of Order 13 Rule 14 of the High Court (Civil Procedure) Rules of Bendel State, 1976 which state as follows||”Where any defendant seeks to rely upon any facts, as supporting a right of set-off or counter-claim he shall, in his statement of defence, state specifically that he does so by way of set-off or counter-claim,||and the particulars of such set off or counter-claim shall be given.”||

Accordingly where a defendant seeks to rely upon any facts as supporting a right of set-off or counter-claim, he must in his Statement of Defence state specifically that he does so by way of set-off or counter-claim. He shall proceed therein to give particulars of such set-off or counter-claim. The recognised practice is to separate the facts relied upon to sustain the counter-claim as much as possible from the remaining part of the Statement of Defence and to arrange them in numbered paragraphs with the word “Counter-Claim” prefixed to it as a hearing, so as to distinguish it from what is pleaded simply as a matter of defence to the plaintiff’s claim.

However the mere absence of such heading would not invalidate a counter-claim which otherwise is properly pleaded. See Lees v. Petterson (1878)7 Ch. D 866. Material facts but not the evidence relied upon in proof of the counter-claim must be pleaded. However, such facts, where appropriate, must, as a rule in the settlement of pleadings, be divided into paragraphs numbered consecutively. Where the defendant pleads both a defence and a counter-claim, the paragraphs of the counter-claim are usually numbered as a continuation of the paragraphs of the Statement of Defence.

||It is significant that the appellant’s counter-claim was properly embodied in its original Statement of Defence of 31 paragraphs dated the 5th October, 1984. Paragraphs 1 to 24 of the said Statement of Defence comprised of the appellant’s defence to the respondent’s Statement of Claim whilst paragraphs 25 to 31 set out its counter-claim.

However, following an amendment to the original Statement of Defence, a new appellant’s amended Statement of Defence dated the 9th February, 1985 was filed. This time, the said amended Statement of Defence only contained 25 paragraphs but with no counter-claim. A further amended Statement of Defence dated the 4th February, 1987 was by the order of court subsequently filed by the appellant. This, again, contained no counter-claim.

The real question is the legal position of this state of affairs in so far as the appellant’s counter-claim was concerned.||As already indicated, where the defendant, as in the present case, pleads both a defence and his counter-claim, the counter-claim shall be set out in the Statement of Defence with the particulars thereof, numbered serially paragraph by paragraph and as a continuation of the paragraphs of the material facts relied upon and pleaded by the defence.

The law is well settled that once ordered, what stood before an amendment of pleadings is no longer material before the court and no longer defines the issues to be tried in a suit. See Grace Amanambu v. Alexander Okafor and Anor (1966) 1 A11 NLR 205; Col. Rotimi v. McGregor (1974) II SC 133 at 152; Warner v. Simpson (1959) 2 WLR 109 etc. The operative Statement of Defence before the court dated the 4th February, 1987 dearly contained no counter-claim. It seems to me that the obvious result must be that the counter-claim earlier set out in the appellant’s original Statement of Defence shall be deemed abandoned.

||In this regard, the court below found as follows:-‘As each amended or further amended Statement of Defence||replaced the previous one, it goes without saying that the further amended Statement of Defence of 2nd defendant replaced the original which had a counter-claim, thus eliminating the counter-claim aforesaid. It would have been otherwise if the amendments were done in the classical manner, to wit, by the deletion of some, or the addition of new paragraphs.

There was therefore no counter claim before the lower Court, and it was right not to comment on it.”||I agree entirely with the above observation of the Court below. Consequently there was no counter-claim before the trial Court in this action to which the respondent could make any defence. The original counter-claim, having been deemed abandoned or withdrawn, was properly struck out by the trial Court as affirmed by the court below. Issue 2 must again be resolved against the appellant.||Issue 4 concerns the Statute of Limitation.

The two questions which arise||therefrom is whether the respondent’s claims are statute-barred by virtue of the provisions of the Public Officers Protection Law, Cap. 137, Laws of Bendel State of Nigeria 1976 and if the answer is in the affirmative, whether the appellant, a Co-operative Society is entitled to take advantage of the said Law to protect itself in this action. In this regard, the Court of Appeal concluded as follows-||”In this case as the vehicle was seized, not withstanding the fact that||the plaintiff was forced to deliver it to the Union, on 24th February||1984, the plaintiff’s cause of action in detinue arose a day after on 25th February, 1984. A plaintiff who wishes to sue a public officer||on that account must commence his action on or before the 25th day of May 1984.

The plaintiff brought his action on 11th June 1984 and was therefore caught by the provisions of Section 2(a) of the Public Officers Protection Law of Bendel State 1976.”||The above finding is as against that of the learned trial Judge to the effect that the respondent’s action was not statute-barred. Said the learned trial Judge-||”The evidence from the plaintiff which was not challenged was that|he returned the vehicle on 20/2/84 but on that same day the Chief||Registrar set up a Panel with terms of reference which included investigation into “the alleged shady transaction in the Union”.

The report of the Panel is Exhibit N and it shows that the Panel made||specific findings and recommendations as regards the sale of the||vehicle. The Panel’s report was dated 16/3/84. It is clear that the||plaintiff could not have considered the seizure to be complete until||the Panel had concluded its work and the Chief Registrar taken||action on the report. As it happened, the panel reco

Other Citation: (1990) LCN/2427(SC)