Sunday Ainabebholo V. Edo State University Workers Farmers Multi-purpose Cooperative Society Limited & Ors. (2006)
LawGlobal-Hub Lead Judgment Report
STANLEY SHENKO ALAGOA, J.C.A.
In the Ekpoma Judicial Division of the High Court of Edo State the appellant as plaintiff on the 8th September 2000 took out a writ of summons against the respondents in Suit No. HEK/52/2000 claiming the following reliefs:-
(a) An order setting aside the findings of the third defendant panel.
(b) An order invalidating the suspension and indefinite suspension order on the plaintiff.
(c) An order reinstating the plaintiff to his position as secretary to the First defendant.
(d) An order for payment of the plaintiff’s salary and allowances as well as any incremental from the date of plaintiff’s suspension 14th January 2000 till date of this court’s judgment.
(e) An order that the first defendant convey the 1999 Annual General meeting.
(d) Damages of N12,000 in favour of the plaintiff for libel committed by the defendants against the plaintiff.
(g) An order against the plaintiff for accounts.
(h) An order that the second defendant’s advertisement for the post of an accountant is in breach of the first defendant’s enabling Laws and Bye- Laws.
(i) An order against the first and second defendants for the sum of N3,000,000 being general damages arising from the illegal suspension order placed on the plaintiff.
(j) An order of interlocutory injunction restraining the first and second defendants and their agents or privy from operating any of the accounts pending the determination of this matter.
Consequent upon the filing of the writ of summons, pleadings were subsequently filed and exchanged by the parties in compliance with order 25 of the High Court (Civil Procedure) Rules 1988 of Bendel State applicable in Edo State. However by a Motion on Notice dated the 5th July 2001 and filed same day and brought under order 24 rule 3 of the said High Court (Civil Procedure) Rules 1988, the 3rd respondent – The Director of Co-operative Society Edo State as applicant, challenged the competence of the appellant’s suit on the ground of non-compliance with a condition precedent to the commencement of the suit as provided for in section 51 of the Co-operative Societies Law, Cap 45 Laws of Bendel State applicable to Edo State and the Nigerian Cooperative Society Decree 1993 and urged the court to dismiss and/or strike out the said suit. Arguments of counsel for the parties were heard on the 18th November 2002 and in its reserved ruling, the High Court on the 3rd March 2003 upheld the objection of the 3rd respondent and struck out the appellant’s claim as being premature.
Dissatisfied with the High Court’s Ruling, the appellant filed a notice of appeal dated 14th March 2003 and filed same day, which is reproduced hereunder from pages 44 and 45 of the Record of Appeal –
NOTICE OF APPEAL
TAKE NOTICE that the appellant, SUNDAY AINABEBHOLO, appeals from the Ruling of the High Court of Justice Ekpoma delivered on 3-3-2003 upon the grounds set out in paragraph 3 and will at the hearing of the Appeal, seek the relief(s) set out in paragraph 4.
AND the appellant further states that the names and addresses of the persons directly affected by the appeal are those set out in paragraph 5.
- Part of the Decision of the Lower Court Complained of:
The whole decision.
- Grounds of Appeal
(a) The court erred in law in striking out the appellant’s case when the appellant has unrestricted right of access to court in spite of the arbitration agreement.
(b) GROUND 2:
The court erred in law in striking out the appellant’s case when the court has unlimited jurisdiction under s. 272(1) of the 1999 Constitution which did not limit itself in any way.
(c) GROUND 3:
The court erred in law in striking out the appellant’s claim when appellant fulfilled the conditions precedent to adjudication by an appeal to the director of co-operative and or the appropriate authority under s. 51(6) of the Bendel State co-operative society Law 1976 as applicable to Edo State.
(d) GROUND 4:
Further and or in the alternative, the Court erred in law in failing to declare S.51 of the said Bendel State Cooperative Society Law as null and void as being inconsist and in conflict with S.272(1) of the 1999 Constitution of the Federal Republic of Nigeria.
- Relief Sought From The Court of Appeal
To set aside the ruling of the High Court of Justice sitting at Ekpoma and send the case back for hearing on the merits.
When this appeal came up for hearing on the 21st February 2006, counsel for the appellant J.O. Udaze adopted the Appellant’s brief dated 1st July 2004 and filed on the 2nd July 2004 as well as the Appellant’s Reply Brief dated 16th February 2006 and filed same day and urged this court to allow the appeal. Counsel for the 1st and 2nd respondents K.O. Obamogie adopted the joint brief of the 1st and 2nd respondents dated 16th October 2004 via a Motion on Notice pursuant to Order 3 rule 4(1) of the Court of Appeal Rules 2002 for-
(a) An Order granting the 1st and 2nd respondents/applicants an extension of time within which to file their respondents’ brief, the time allowed by the rules of court having expired.
(b) Deeming the 1st and 2nd respondents’ brief attached to the supporting affidavit as exhibit A as properly filed and served the prescribed filing fees having been paid.
This motion was granted on the 12th October 2005. He also referred to the preliminary objection of the 1st and 2nd respondents incorporated on pages 2 and 3 of their brief and urged this court to hold that the grounds of appeal are incompetent and to dismiss the appeal. An oral application to strike out the reply brief of the 1st and 2nd respondents, same having been filed out of time and without leave of court was withdrawn by Mr. Obamogie in the over-riding interest of justice and upon a request by Mr. Udaze, this court extended time to the 1st and 2nd respondents to file their reply brief and also deemed the reply brief earlier referred to as having been duly filed and served.
Mrs. Imadegbelo adopted the brief of argument of the 3rd respondent dated 29th November 2004 and deemed filed on the 12th October 2005 and urged this court to dismiss the appeal.
The 1st and 2nd respondents have argued in their joint brief of argument at pages 2 and 3 that the four grounds of appeal filed and argued by the appellant are incompetent because the said grounds having alleged errors of law made by the trial court, particulars of the alleged errors have not been and ought to have been provided. Reliance was placed on OMALIKO V. AWACHIE (2002) 12 NWLR PART 780 page 1 at pages 17-18 wherein it was held as follows:-
“………No doubt, a ground of appeal alleging an error of law must be followed by the particulars of the surmised error. Ground 5 of the amended grounds of appeal as reproduced above, has no particulars attending to it. It stands bare without any support. Without any further much ado, it must be struck out as it is incompetent. I order accordingly.”
The 1st and 2nd respondents therefore urged this court to strike out the four grounds of appeal as incompetent and no other ground of appeal exists outside the four grounds mentioned in the Notice of Appeal, the main appeal ought to be dismissed. The appellant has submitted in his Reply brief on this objection that a cursory look at the grounds of appeal contained at pages 44-45 of the record of appeal shows that the particulars of the grounds of appeal are embedded in the grounds. Consequently no further particulars need be furnished or itemized in law. He relied on LAUWERS IMPORT – EXPORT V. JOZEBSON INDUSTRY LTD (1988) 3 NWLR PART 83 Page 429.
The aim of particulars of grounds of appeal alleging error or misdirection is to highlight the complaint against the judgment on appeal. Particulars are not made independent of the complaint in a ground of appeal but are ancillary to it. It is the particulars that ensure that the grounds of appeal are sufficiently set out. See OSASONA V. AJAYI (2003) 14 NWLR PART 894 page 527 at 545; GLOBE FISHING INDUSTRIES LTD. V. COKER (1990) 7 NWLR PART 162 page 265 at 300. There is nothing sacrosanct about particulars to a ground provided the said particulars are embedded in the said grounds. In such a situation the grounds can stand on their own, I think it is correct here to say that the particulars are so embedded in the grounds and their conspicuous absence does not invalidate the grounds of appeal. Accordingly I do hereby dismiss the preliminary objection.
I shall now proceed to deal with the appeal proper.
Arising from the four grounds of appeal contained in the Notice of appeal at pages 44 and 45 of the Record of Appeal, the appellant has distilled the following three issues for the determination of this court and they are as follows:-
(1) Whether arbitration agreement ousts the jurisdiction of the courts or extinguishes the right of access of the parties to go to court.
(2) Whether an appeal to the Commissioner of Commerce does not amount to sufficient compliance with section 51(6) of the Edo State Cooperative Society Law Cap 45 Laws of Bendel State of Nigeria 1976 before going to court.
(3) Whether Section 51 of the Cooperative Society Laws of Bendel State 1976, applicable to Edo State is not void as being in conflict with the right of access to court of a litigating party and or the jurisdiction of the court to determine disputes between parties.
The 1st and 2nd respondents in their brief of argument at page 1 formulated the following two issues:-
(a) Whether or not the action of the appellant was premature and filed in violation of Section 51(6) of the Cooperative Societies Law, Cap 45, Laws of Bendel State applicable to Edo State and Section 45 of the Nigerian Co-operative Society Decree 1993.
(b) Whether or not Section 51 of the Co-operative Societies Law, Cap 45 Laws of Bendel State of Nigeria Applicable to Edo State and Section 45(1) of the Nigerian Co-operative Society Decree 1993 are unconstitutional.
In the 3rd Respondent’s brief of argument the following two issues were distilled:-
(i) Whether or not the action of the appellant was void, premature and filed in violation of section 51(6) of the Co-operative Societies Law, Cap 45 Laws of Bendel State 1976 as applicable in Edo State.
(ii) Whether or not section 51 of the Co-operative Societies Law Cap 45 Laws of Bendel State of Nigeria applicable to Edo State is unconstitutional.
A cursory look at the issues for determination filed by the respondent’s shows that they are exactly the same and are subsumed in the issues filed by the appellant. On the other hand the appellant’s issues Nos. 1 and 3 are the same and deal with the Constitutionality of Section 51 of the Co-operative Societies Law Cap 45 Laws of Bendel State of Nigeria applicable to Edo State and Section 45(1) of the Nigerian Co-operative Society Decree 1993. Issue 2 of the 1st and 2nd as well as the 3rd respondents briefs also deal with this same question of Constitutionality of the above stated laws. The other issues it is apparent to me cannot be dealt with without a direct reference to the constitution. I therefore think that one issue for determination by this court will suffice and that is whether section 51 of the Co-operative Societies Law Cap 45 Laws of Bendel State of Nigeria applicable in Edo State and section 45(1) of the Nigerian Co-operative Society Decree 1993 are unconstitutional. However in dealing with this sole issue for determination it is proposed that all the arguments canvassed by the parties outlined in their respective briefs and covering all the issues highlighted in the said briefs be considered.
Appellant has submitted that section 1(1) of the Constitution of the Federal Republic of Nigeria 1999 is mandatory and supreme and that by section 1(3) of the same Constitution any other law in conflict with the 1999 Constitution shall be void. He further submits that by a community reading of the aforementioned section of the Constitution as well as section 6(2)(5); 6(6)(b); 36(1) & (2); and 272( 1) of the Constitution whose provisions are clear and unambiguous, the provisions of section 51 of the Co-operative Societies Law 1976 of Bendel State applicable in Edo State is void in so far as it conflicts with the right of access of the appellant to go to court. He referred to the following cases – TONY MOMOH v. SENATE (1981) 21 at 22 ratio 7; TONY MOMOH V. SENATE (NO 2) (1981) 1 NCLR 105 at 106; SHUGABA v. FEDERAL MINISTER OF INTERNAL AFFAIRS (1981) 1 NCLR page 25 ratio 3. These provisions of the Constitution he went on to submit cannot even be differently interpreted by the court as they are in accord with the tenets of social justice and it is against this backdrop that parties to an arbitration have the right to go to court in spite of any arbitration agreement. He relied on the following cases –
N.B SCHEAP V. M.V. SAZAZ (2000) 8 LRCN 3131 at 3142; OSADEBAY v. A.-G. BENDAL STATE (1991) NWLR PART 169 page 541. He went on to submit that the investigative panel’s report was initiated due to the petition of the appellant who appealed against the final panel report by an appeal to the Commissioner for Commerce and Industry Edo State before going to court and that by this singular action all internal remedies had been exhausted which is sufficient compliance with Section 51(6) of the Edo State Co-operative Society Law Cap 45 Laws of Bendel State of Nigeria 1976 as applicable to Edo State and consequently the action cannot be premature.
On their part the 1st and 2nd respondents submitted that the law is settled that where a party fails to satisfy a condition precedent to the institution of an action, the action instituted by the party is premature and consequently incompetent. The following cases were referred to and relied upon-
OMALIKO V. AWACHIE (2002) 12 NWLR PART 780 1 at 26 paras A-C; NIGERIAN CEMENT CO. LTD V. NIGERIAN RAILWAY CORPORATION & ANOR (1992) 1 NWLR PART 220 page 747 at 761 paras F-G; AJIBI V. OLAEWE (2003) 8 NWLR part 822 PAGE 237 AT 289 paras A-D; BALOGUN V. UNIVERSITY OF ABUJA (2002) 13 NWLR PART 783 page 42 at pages 58- 59. The 1st and 2nd respondents also submitted that from the pleading of the appellant there has been a substantial non-compliance with the provisions of section 51(6) of the Cooperative Societies Law Cap 45; that the appellant did not plead that he appealed against the decision of the 3rd respondent to the appropriate authority i.e the Commissioner for Commerce and Industry in Edo State before the commencement of his action, the appeal being a fundamental requirement of that statutory provision. It was submitted that this case is distinguishable from the case of N.V. SCHEEP & ANOR V. MV “S. ARAZ (2000) 12 SC (Pt. 1) page 165 cited in the appellant’s brief as the condition to litigation here is statutory. It was further contended that parties are bound by their pleadings and anything outside it will not be considered, and as such the court must limit itself to the issues raised in the pleadings. The case of BALOGUN V. UNIVERSITY OF ABUJA (Supra) was relied upon. It was again submitted that section 51(6) of the Co-operative Societies Law in so far as it provides for an internal appeal to the Commissioner for Commerce and Industry is not unconstitutional and that a statute is not unconstitutional merely because it creates an obstacle to the commencement of an action. It was submitted that for a statute to be declared unconstitutional the obstacle must be improper. Counsel relied on the following cases in which restrictions of access to the court have been held to be legitimate – HON. JUSTICE MAMMAN KOLO V. ATT. GEN OF THE FED. (2003) 10 NWLR (Pt. 829) page 602; CHRISTOPHER ONJEWU V. KOGI STATE MINISTRY OF COMMERCE AND INDUSTRY (2003) 10 NWLR PART 827 page 40 at pages 78-79. It was therefore contended that section 51(6) of the Co-operative Societies Law Cap 45 Laws of Bendel State applicable in Edo State is not in conflict with section 6, 36(1) and 272(1) of the Constitution of the Federal Republic of Nigeria 1999 in so far as it provides for an appeal to the Commissioner for Commerce Industry. It was however conceded by the 1st and 2nd respondents on page 4 of their joint brief of argument that the provision of section 51(6) of the Co-operative Societies Law Cap 45, Laws of Bendel State 1976 applicable to Edo State which makes the decision of the Commissioner for Commerce and Industry final and conclusive is unconstitutional as same curtails the citizen’s right of access to the court after the determination by the Commissioner for Commerce and Industry.
Save for the addition of the following to the list of authorities – AJIBI V. OLAEWE (2003) 8 NWLR (Pt. 822) at page 237 – 289; BANQUE GENEVOISE DE COMMERCE ETDE REDIT V. C.I. MARDILSOLA SPETSAI LTD (1962) 2 SCNLR 310 to the effect that where a party to an action fails to comply with a condition precedent to the institution of an action, the action instituted by that party is premature and incompetent, the argument of the 3rd respondent is exactly the same as that canvassed by the 1st and 2nd respondents in their joint brief and it will be unduly repetitious to restate them.
The appellant in his Reply Brief has submitted that it is incongruous for the respondents to insist on appeal to the Commissioner for Commerce and Industry before filing an action in court and yet concede that the eventual decision of the Commissioner which seeks to make the decision final is unconstitutional.
Section 51(6) of the Co-operative Societies Law Cap 45 Laws of Bendel State of Nigeria 1976 applicable to Edo State provides as follows – “Any party aggrieved by any order of the Registrar made under subsections (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”.
Against the backdrop of this provision it is imperative to examine specific provisions of the Constitution on this standpoint. Section 6(2) of the Constitution states that the judicial powers of a state shall be vested in the courts to which this section relates, being courts established subject as provided by this Constitution for a state. Subsection 5 of section 6 spelt out courts to which the section relates.
Section 6(6)(b) then provides that the judicial powers vested in accordance with the foregoing provisions of this section shall extend to all matters between persons, or between government or authority and to any person in Nigeria and to all actions and proceedings relating thereto for the determination of any question as t the civil rights and obligations of that person.
Section 1(1) provides as follows, “This Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria”.
Section 1(3) then goes on to provide that, “If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail and any other law shall to the extent of the inconsistency be void.
These provisions of the Constitution are clear and unambiguous, and there is a plethora of cases on the point that in the interpretation of statutes and in this case the Constitution, when the words are clear and unambiguous they must be given their ordinary, plain and literal translation see CHIEF GANI FAWEHINMI V. IGP & 2 ORS (2002) 7 NWLR PART 767 page 606 at page 678 paragraphs B-D; AFRICAN NEWSPAPER V. FEDERAL REPUBLIC OF NIG. (1985) 2 NWLR PART 6 page 137; OGBONNAH V. ATT. GEN OF IMO STATE (1992 1 NWLR PART 220 page 647; ATT. GEN OF ABIA STATE V. ATT. GEN OF THE FEDN (2002) 6 NWLR PART 763 page 264 at page 486; TEXACO PANAMA INS V. SHELL PDC (2002) 5 NWLR PART 759 page 209 at 227; TASHA V. UBN PLC (2002) 3 NWLR PART 753 page 99. The 1st and 2nd respondents have unwittingly shot themselves in the leg by admitting as follows on page 4 of their joint brief of argument, “However it is conceded that the provision of the above law (section 51(6) of the Co-operative Societies Law Cap 45, Laws of Bendel State of Nigeria 1976 applicable to Edo State which makes the decision of the Commissioner for Commerce and Industry final and conclusive is unconstitutional as same curtails the citizens right of access to the court after the determination by the Commissioner for Commerce and Industry” I dare say that section 51(6) of the Co-operative Societies Law does not simply curtail the Citizen’s rights of access to court but stops any such access to court. The issue therefore is not simply whether or not the action of the appellant was premature and filed in violation of section 51(6) of the Co-operative Law or any other law but whether such law or laws are not inconsistent with the Constitution. The 1st and 2nd respondents have argued in their Brief of argument that the courts have held that the law permits and regards some restrictions of access to the court for which the following cases were cited -HON JUSTICE MAMMAN KOLO V. ATTORNEY GENERAL OF THE FEDERATION (Supra); CHRISTOPHER ONJEWU V. KOGI STATE MINISTRY OF COMMERCE AND INDUSTRY.
I have carefully read both cases. In Kolo’s case the appellant as plaintiff in the court below had instituted an action against the respondents then defendants challenging the legality of his retirement. After pleadings were filed and exchanged between the parties but before the commencement of hearing in the matter, a preliminary objection was taken to the action filed on the basis that the respondent being a public officer, the appellant’s suit against the respondents was statute barred not having been commenced within the mandatory three months statutory period after the accrual of the cause of action as required by section 3 of the Public Officers Protection Act and should therefore be dismissed. Arguments were taken by the trial court on the motion for dismissal of the action and in a considered ruling the court upheld the respondents’ objection and dismissed the appellant’s action. An appeal to the Court of Appeal by the appellant was dismissed. One of the issues for determination on appeal was whether the Public Officers Protection Act which limits the period after the accrual of a cause of action against a Public Officer to three months is unconstitutional. The reasoning of the court here after outlining the rationale behind the statute of limitations is that a provision that prescribes the procedure for invoking the exercise of judicial power cannot be said to be in conflict with the Constitution.
In CHRISTOPHER ONJEWU V. KOGI STATE MINISTRY OF COMMERCE AND INDUSTRY (Supra) the issue was whether section 8(3) of the State Proceedings Edict 1988 and section 84(1) of the Sheriffs and Civil Process Law of Kogi State are legally valid having regard to the provisions of Section 287(3), Section 3 Section 6(6)(b) and Section 36(1) of the 1999 Constitution. This has to do with the demand for the consent or authorization of either the Attorney General of the Federal or of a State before the judgment of a High Court obtained against the State is executed or enforced. The facts are not very necessary to this discourse but suffice it to say that the above mentioned provisions were said by the court to “do no violence” to the Constitution. The primary difference between the provisions in these two latter cases cited and section 51(6) of the Cooperative Societies Law 1976 is that while those provisions may impose certain restrictions which are not in themselves unconstitutional section 51(6) makes the judgment of the Commissioner for Commerce and Industry final which finality bars the complaint from any redress in court. It is this complete bar from access to court as has been seen by reference to specific provisions of the Constitution that makes S.51 unconstitutional.
The sole issue is therefore resolved in favour of the appellant against the respondents. Accordingly the ruling of Ikponmwen J. of the High Court of Justice sitting in Ekpoma delivered on the 3rd March 2003 is hereby set aside and the case is remitted to the Chief Judge of Edo State for reassignment to any Judge other than Ikponmwen J.
There shall be N5,000.00 in favour of the appellant against each of the 1st – 3rd respondents.
Other Citations: (2006)LCN/1959(CA)
