⦿ CASE SUMMARY OF:
SIFAX NIGERIA LIMITED & ORS v. MIGFO NIGERIA LIMITED & ANOR (2015) – CA
by PipAr Chima
⦿ LITE HOLDING
Time does not run for the purpose of statute of limitation when a matter is pending in court.
⦿AREA OF LAW
– administrative law
– statute of limitation.
– statute barred.
– res judicata.
– necessary party.
– non-joinder & joinder
SIFAX Nigeria Limited & Ors
MIGFO Nigeria Limited & Anor
(2015) JELR 40628 (CA)
Court of Appeal
⦿ LEAD JUDGEMENT DELIVERED BY:
Samuel Chukwudumebi Oseji, JCA
* FOR THE APPELLANT
– Dr. Oladapo Olanipekun
* FOR THE RESPONDENT
– Mr. M. Igbokwe
⦿ FACT (as relating to the issues)
Briefly put, the facts of this case is that the 1st Appellant and the Respondents put up a Memorandum of Understanding (MOU dated 27-7-05 to jointly bid for the concessioning and subsequent joint management of Terminal ‘C’ Tin Can Island Port, Apapa, Lagos, which was then being concessioned by the Federal Government of Nigeria through the Bureau for Public Enterprises (BPE) and the Nigerian Ports Authority (NPA).
The bid document was subsequently submitted to the BPE by the 1st Appellant on behalf of the others after their joint effort and input in preparing same. It was also part of the MOU that, should the bid be successful, a joint venture company will be incorporated by the joint venture partners to manage the operations of the Port.
They eventually emerged the preferred bidders and while waiting for the 1st and 4th Appellants to summon the Respondents for a meeting to map out the way forward including the incorporation of the Joint Ventures Company. The 1st, 3rd and 4th Appellant secretly promoted and incorporated the 5th Appellant (Port and Cargo Handling Services Company Limited) to the exclusion of the Respondents and without their knowledge, upon being aware of the development and that the Port had been handed over to the 5th Appellant by the BPE/NPA, the Respondents immediately conducted a search at the Corporate Affairs Commission, Abuja and on 20-7-2006 obtained certified true copies of the incorporation documents which revealed that only the 1st and 3rd Appellants where stated as shareholders and directors to the exclusion of the Respondents contrary to the terms of the MOU.
After efforts to meet with the Appellants with a view to resolving the issue failed, the respondents filed suit No. FHC/L/CS/664/2006 at the Federal High Court, Lagos.
Judgment was eventually given in their favour and this was affirmed by the Court of Appeal. But on further appeal to the Supreme Court the suit was struck out on the ground that the Federal High Court lacks the jurisdiction to entertain the action instituted by the Respondents. The said judgment was delivered on 8-6-12.
The Respondents thereafter commenced this action afresh at the High Court of Lagos State (Lower Court) on the 18-7-2012. The Appellants as the defendants in the Lower Court reacted by filling a motion on notice wherein they prayed that the suit be struck out for being statute barred. In a ruling delivered on 5-7-2013, the Lower Court held that the action is not statute barred because it was not caught be Section 8 of the Limitation Law of Lagos State. Being dissatisfied with the said ruling the Appellants filed a Notice of Appeal dated and filed on 15-7-2013.
1. Whether the Lower Court was not wrong when it failed to apply the clear and unambiguous provisions of Section 8(1) of the Limitation Law of Lagos State and in holding that the Respondents’ action was not statute barred.
2. Having regard to the Respondents’ claim before the Lower Court, vis-a-vis the facts and circumstances of the case, whether the Lower Court was not in grave error when it held that the non-joinder of the Bureau of the Public Enterprises and the Nigeria Port Authority is not fatal to the Respondents.
⦿ RESOLUTION OF ISSUE(S)
1. ISSUE 1 WAS RESOLVED IN FAVOUR OF THE RESPONDENT BUT AGAINST THE APPELLANT.
i. I have carefully perused the writ of summons which was filed on 18-7-2012 as well as the statement of claim filed the same day and contains 54 paragraphs of averments together with an 11 paragraph reliefs had earlier been reproduced in this judgment. From the averments in the said statement of claim, particularly paragraphs 39 to 47, I am inclined to accept as of fact that the cause of action that gave rise to the Respondent’s right of action accrued on 20-7-2006 the date they obtained the certified copies of the documents from the Corporate Affairs Commission showing that the 5th Appellant was incorporated and the 1st and 3rd Appellants made shareholders and Directors to the exclusion of the Respondents contrary to their joint venture agreement.
2. ISSUE 2 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. On the basis of the above principle of law relating to necessary parties, I have perused the writ of summons and statement of claim with particular reference to the relief sought therein by the Respondents but unfortunately could not see my way through to the basis or justification for the insistence of the Appellants that failure or neglect of the Respondent in joining the NPA and BPE in the suit at the Lower Court is fatal to their case. As found by the Lower Court and which I entirely agree with, none of the eleven heads of claims sought by the Respondent connects the NPA or BPE and there is no where in the entire statement of claim where they were accused of any wrong nor shown to be likely to gain or lose any right or interest in the subject matter of the Suit. There is infact no challenge by the Respondent, on the fact that Terminal C of the Tin Can Island Port was concessioned to the 5th Appellant or that the hand over was not properly done by the NPA or BPE. The Respondents did not also complain that the method adopted in so doing was wrong or that it was inconsistent with the Federal Government Policy on the concessioning of Ports. The Respondent’s grouse as shown in the pleadings is solely against the Appellants who had conspired to exclude them from the whole transaction despite the Joint Venture Agreement between them and the 1st Appellant. The mere mention of the names of the NPA and BPE in some averments in the statement of claim does not of necessity create a legal obligation to have them joined as necessary parties when there is no modicum of reason to so do.
⦿ ENDING NOTE BY LEAD JUSTICE – Per
⦿ REFERENCED (STATUTE)
Section 22 of the Federal High Court Act as Amended in 2005 provides that: 22(2) “No cause or matter shall be struck out by the court on the ground that such cause or matter was taken in the court instead of the High Court of a State or of the Federal Capital Territory, Abuja, in which it ought to have been brought, and the Judge of the court before when such cause or matter to be transferred to the appropriate High Court of a State or of the Federal Capital Territory, Abuja in accordance with the Rules of Court so made under Section 44 of this Act.”
⦿ REFERENCED (CASE)
The locus classicus on the often vexed issue of distinction between ‘proper parties’ ‘desirable parties’ and ‘necessary parties’ is the evergreen case of Green v. Green (1987) 3 NWLR (Pt. 61) 480 at 493 or (1987) 18 NSCC (Pt. 2) 1115. Wherein the supreme court per Oputa JSC (now of blessed memory) held that:- “This now leads one to the consideration of the difference between ‘proper parties’, ‘described parties’ and ‘necessary parties.’ Proper parties are those who ought not interested in the plaintiff claim, are made parties for some good reasons e.g where an action is brought to rescind a contract, any person is a proper party to it who was active or concurring in the matters which gave the plaintiff the right to rescind. Desirable parties are those who have an interest or who may be affected by the result. Necessary parties are those who are not only interested in the subject matter of the proceedings but also who in their absence, the proceedings could not be fairly dealt with. In other words, the question to be settled in the action between the existing parties settled unless they are parties to the action instituted by the plaintiff.”
Bello, JSC, (later CJN, now of blessed memory) in the case of Unongo v. Aku and Ors. (1983) 14 NSCC 563 at 577-578 thus – “One of the powers which has always been recognised as inherent in courts has been the right to control their internal proceedings and to so conduct the same that the rights of all suitors before them may be safeguarded in such a manner that all parties are given ample opportunity to prosecute or defend the cases for or against them without let or hinderance. The old adage that delay of justice is denial of justice has the same force as the maxim that hasty or hurried justice is also a denial of justice. On this account any statute which prescribes time limit within which a trial court must try and determine cases or within which an appeal court must hear and determine appeals is inconsistent with the provisions of Sections 4(8) and 6(9)(b) of the Constitution and is therefore void by virtue of Section 1(3) of the Constitution.”
The Apex Court held in the case of Panalpina World Transport (Nig.) Ltd. v. J. B. Oladeen International and Ors. (2010) 19 NWLR (Pt. 1226) 1 at 20 per the lead judgment of Adekeye, JSC, (as he was) that when a matter is struck out it is still alive and kept in the court’s general cause list and that – “When an order is made in respect of an application not heard on the merits, it amounts to striking out simpliciter. Even where an order of dismissal is made following a hearing which is not based on the merits, such order is still considered in law a mere striking out. When a matter is struck out in such circumstances, there is liberty to relist. The simple explanation is that while the matter is discontinued from that date, it is still alive and kept in the court’s general cause list and can be brought back to the hearing cause list…..
⦿ REFERENCED (OTHERS)
⦿ NOTABLE DICTA
It is also trite that in order to ascertain the time when the cause of action accrued, for the purpose of the limitation law, the courts only looks at the writ of summons and the statement of claim which ordinarily ought to contain averments of facts as to when the wrong committed by the Defendant took place and compare it with the date when the writ of Summons was filed. – Oseji, JCA. SIFAX v. MIGFO (2015)
It is also well established that when a party raises the issue that an action is statute barred, he is no doubt challenging the competence of the Suit and the jurisdiction of the court to entertain it. – Oseji, JCA. SIFAX v. MIGFO (2015)
Courts these days are concerned with real justice and not technical justice. It would be clear technical justice to hold that the suit in the instant case is statute barred when it was commenced within time and with judgments in favour of the the Respondent in the two Lower Courts but at the Supreme Court was struck out on the ground of lack of jurisdiction by the Federal High Court. – Iyizoba, JCA. SIFAX v. MIGFO (2015)
Authorities have also defined cause of action as a factual situation which a Plaintiff relies upon to support his claim, recognized by law as giving rise to a substantive right capable of being enforced against a Defendant. See Agbanelo v. Union Bank of Nigeria Ltd (2002) 4 SC (Pt. 7) 243; Adesokan v. Adegoloru (1997) 3 NWLR (Pt. 493) 61; Emiator v. Nigerian Army (1999) 12 NWLR (Pt. 631) 362; Akande v. Adisa (2004) All FWLR (Pt. 236) 413. – Oseji, JCA. SIFAX v. MIGFO (2015)
Nonetheless, I am of the humble view that the postulation of the learned author relied on by the learned trial judge to the effect that time ceases to run when the Plaintiff commences legal proceedings in respect of a cause of the action in question is quite persuasive on this recondite area of law and it accords with justice and common sense. Where an aggrieved person commences an action within the period prescribed by the statute and such action is subsequently struck out for one reason or the other without being heard on the merit or subjected to an outright dismissal, such action is still open to be recommenced at the instance of the Claimant and the limitation period shall not count during the pendency of the earlier suit. In order words, computation of time during the pendency of an action shall remain frozen from the filing of the action until it is determined or abates. – Oseji, JCA. SIFAX v. MIGFO (2015)
Further to this is the trite law that where there has been a non-joinder either by failure of the parties or an intervener to apply for such joinder or failure of the court to join suo motu, the non-joinder will not be taken as a ground for defeating the action. The said rule is designed to save rather than to destroy, to cure rather than to kill the action or Suit. – Oseji, JCA. SIFAX v. MIGFO (2015)
I believe, most respectfully, that in construing statutes of this nature some measure of good or common sense should be brought to bear on the statutory provisions under construction for the purpose of meeting the mischief the enactment is intended to cure and/or the object of the statute. – Ikyegh, JCA. SIFAX v. MIGFO (2015)
The object of the Limitation Law is to penalise claimants who slumber over the enforcement of their rights. – Ikyegh, JCA. SIFAX v. MIGFO (2015)
The concept of Statute of Limitation is to allow a defendant take advantage of the equitable defence of laches where the plaintiff is guilty of unreasonable and prejudicial delay in commencing the suit. Where in a situation such as this, the suit was commenced within time and due to no fault of the Plaintiff the case was at the Supreme Court struck out for lack of jurisdiction on the part of the court of first instance, it would amount to grave injustice when the suit is re-filed at the appropriate court to allow the defendant plead Statute of Limitation. – Iyizoba, JCA. SIFAX v. MIGFO (2015)