SIFAX NIGERIA LIMITED & ORS v. MIGFO NIGERIA LIMITED & ANOR (2015)

SIFAX NIGERIA LIMITED & ORS v. MIGFO NIGERIA LIMITED & ANOR

(2015)LCN/7844(CA)

In The Court of Appeal of Nigeria

On Monday, the 27th day of April, 2015

CA/L/843/2013

RATIO

PRACTICE AND PROCEDURE; CAUSE OF ACTION; THE DEFINITION OF CAUSE OF ACTION AND WHEN DOES A CAUSE OF ACTION MATURES OR ARISES AND WHEN DOES THE PERIOD FOR THE ENFORCEMENT OF SUCH RIGHT EXPIRES

On issue I, cause of action is defined in Blacks Law Dictionary 9th Edition at Page 57 as:-
“A group of operative facts giving rise to one or more basis for suing; a factual situation that entitles one person to obtain a remedy in court from another person.”
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 VS UNION BANK OF NIGERIA LTD (2002) 4 SC (PT.7) 243; ADESOKAN Vs ADEGOLORU (1997) 3 NWLR (PT.493) 61; EMIATOR VS NIGERIAN ARMY (1999) 12 NWLR (PT.631) 362; AKANDE vs ADISA (2004) ALL FWLR (PT.236) 413.
In WOHEREM VS EMERUWA (2004) ALL FWLR (PT.221) 11570. The Apex Court per IGUH JSC held that page 1581 that:-
“It cannot be disputed that a cause of action matures or arises on a date or from the time when a breach of any duty or act occurs which warrants the person thereby injured or the victim who is adversely affected by such breach to take a court action in assertion or protection of his legal right that has been breached.”
However, the period for the enforcement of such right of action may expire or lapse on a date which a statute of limitation prescribes that no such legal action or proceedings may lawfully be commenced by an aggrieved party. In such a situation any action instituted after the expiration of the period prescribed by law is said to be statute barred given that time begins to run for the purpose of the limitation Law, from the date the cause of action accrues. See SPDC LTD VS SARAH (1995) 3 NWLR (PT.382) 148; ASABORO VS PAN OCEAN OIL (NIG) LTD (2006) 4 NWLR (PT.971) 595; OGUNKO vs SHELLE (2004) 6 NWLR (PT.868) 17. per. SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.

PRACTICE AND PROCEDURE: CAUSE OF ACTION; HOW TO ASCERTAIN THE TIME WHEN THE CAUSE OF ACTION ACCRUED FOR THE PURPOSE OF THE LIMITATION LAW AND THE IMPLICATION OF A PARTY RAISING THE ISSUE THAN AN ACTION IS STATUTE BARRED

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. See AMUSAN VS OBIDEYI (2005) 14 NWLR (PT.945) 322; MILITARY ADMINISTRATION EKITI STATE VS. ALADEYELU (2007) 14 NWLR (PT.1055) 619; WILLIAMS VS WIILIAMS (Supra). 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. See ADEKOYA vs FEDERAL HOUSING AUTHORITY (2008) 11 NWLR (PT.1099) 539 where the Supreme Court held that:- “A plea by a Defendant in any given case that an action is statute Barred is a plea which raises the issue of jurisdiction and which determinant is the writ of summons and the statement of claim.” See also KOLO VS FBN PLC (2003) 3 NWLR (PT.886) 216 and OLAGUNJU vs PHCN PLC (2011) LPLER (2556) SC. per. SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.

PRACTICE AND PROCEDURE: PROPER PARTIES AND NECESSARY PARTIES; THE DISTINCTION BETWEEN “PROPER PARTIES” AND “NECESSARY PARTIES”

The locus classicus on the often vexed issue of distinction between ‘proper parties’ ‘describable parties’ and ‘necessary parties’ is the evergreen case of GREEN VS 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.”
In BABAYEJU VS ASHUMU (1998) 9 NWLR (PT.567) 546 the Apex Court – held that a necessary party is someone whose presence is necessary as a party and the only reason which makes it necessary to make a person a party to an action is that he should be bound by result of the action, and the question to be settled must therefore be a question in the action which cannot be effectually and completely settled unless he is a party. See also PEENOK INVESTMENTS LTD VS HOTEL PRESIDENTIAL (1982) 12 SC Page 1; CARLEN (NIG) LTD vs UNIVERSITY OF JOS (1994) 1 SCNJ 72 or (1994)1 NWLR (PT.323) 631. RTNA & ORS VS MHWUN & ORS (2008) 1 SC (PT.III) Page 1; COKER Vs ADEYEMO (1968) NWLR 323 at 324. emphasis). per. SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.

PRACTICE AND PROCEDURE: CAUSE OF ACTION; WHEN IS A CAUSE SAID TO BE PENDING IN COURT OF JUSTICE

The appellants argued that a case struck out is dead. But the Supreme Court case of Alhaji Haruna Kassim (Trading as Cash Stores) v. Hermann Ebert (1966) N.N.L.R. 75 at 76 – 77 held inter alia that a suit struck out is still pending and that –
“As Lord Jessel, M. R., put it in Re Clagett’s Estate, Fordham v. Clagett (1882) 20 Ch.D. 637 at 653, –
A cause is said to be pending in a court of justice when any proceeding can be taken in it. That is the test. If you can take any proceeding it is pending”.
We therefore find it difficult to see how the claims can be said to be statute barred, and we think the learned trial judge was right to have rejected this plea”.
The old English case of Re Clagett (supra) at 653 was also applied in the case of Renner v. Thensu and Orc. (1930) 1 W.A.C.A. 77 at 78 in which the phrase ‘pending’ was held in the judgment of Hall, J., (with Deane, C.J., and Sawry-Cookson, J., in concurrence), using the words of Jessel, M. R., inter alia to mean that –
“‘Pending’ does not mean that it has not been tried. It may have been tried years ago. In fact in the days of the old court of Chancery, we were familiar with cases which had been tried fifty or even one hundred years before and which were still pending. Sometimes, no doubt, they require a process which we call reviving, but which the Scotch call waking up; but nevertheless they were pending suits…”.
Further, 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, J.S.C., (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…..
In such a case, the plaintiff still has another opportunity to re-open the action after rectifying the deficiency that resulted in the striking out of the action. This is applicable even where the court has not included in the order of striking out that the plaintiff has an option to relist. The matter struck out has not left the cause list – as it is still a pending case or pending cause. The same procedure applies even when a matter has been decided many years ago.
Alor v. Ngene (2007) All FWLR (Pt.362) pp.1836; (2007) 17 NWLR (pt.1062) 163; Waterline Nigeria Limited v. Fawe Servies Limited FWLR (Pt.163) pg.88″. (My emphasis).
See also the Supreme Court case of Abey v. Alex (1999) 14 NWLR (pt.637) 148 at 162.
In my modest view, it follows that the revival of the action after it had been struck out was still the continuation of the same action that was struck out, so the stoppage of time during the pendency of the action that was struck out would count in favour of the renewed action at the court with the requisite jurisdiction of the court below. per. SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.

PRACTICE AND PROCEDURE: NON-JOINDER OF PARTIES; WHETHER THE THE NON-JOINDER OF A PARTY WHO IS NOT AFFECTED BY THE RELIEFS SOUGHT IN THE ACTION IS NOT FATAL TO THE ACTION BEFORE THE COURT

In my considered opinion, the non-joinder of a party who is not affected by the reliefs sought in the action is not fatal to the action before the court. See A.G., Rivers State v. A.-G., Akwa Ibom State (2011) 8 NWLR (Pt.1248) 31 at 129 – 130 and 203. Besides, a claimant cannot be forced to proceed against a defendant that has nothing to do with the reliefs sought in the action by the claimant vide Olawoye v. Jimoh and Ors. (2013) 13 NWLR (pt.1371) 362 at 383, Sapo v. Sapo (2010) 3 – 5 S.C. (pt.11) 130, In Re: Faleke (Mogaji) (1986) 1 NSCC 364. per. SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.

JUSTICES

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria

SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria

Between

1. SIFAX NIGERIA LIMITED
2. DR. TAIWO AFOLABI
3. MR. BABATUNDE OLANREWAJU AFOLABI
4. OTUNBA MICHAEL OLATUNDE OLOWU
5. PORTS AND CARGO HANDLING SERVICES COMPANY LIMITED Appellant(s)

AND

1. MIGFO NIGERIA LIMITED
2. DENCA SERVICES LIMITED Respondent(s)

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of the High Court of Lagos State delivered by L. B. LAWAL-AKPAPO J. on the 5th day of July, 2013 with respect to the Appellant’s motion on notice filed on 20-12-2012.
The Respondents herein had as Claimant in the Lower Court commenced an action by way of a writ of Summons, and statement of claim and filed on 18/7/2012 against the Defendants (now Appellants) wherein they claimed the following reliefs:-

WHEREFORE the Claimants claim against the Defendants jointly and severally as follows:-

1. a declaration that the contents of the Technical Proposal/Bid documents dated June, 2005 and the Memorandum of Understanding dated 27/07/05, other relevant oral statements and documents made between, series of letters written by and the conduct of the Claimants and the 1st Defendant in respect of the bidding in the name of the 1st Defendant for the concession and the subsequent operation/management of Terminal C, Tin Can Island Port, Apapa, Lagos.

2. A declaration that by the contract constituted by the Technical Proposal/Bid documents dated June, 2005, the Memorandum of Understanding dated 27/07/05 and other relevant oral statements and documents made between, series of letters written by and the conduct of the Claimants and the 1st Defendant in respect of the bidding in the name of the 1st Defendant for the concession and subsequent
operation/management, of Terminal C, Tin Can Island Port, Apapa, Lagos; the 1st Defendant, the 1st Claimant and the 2nd Claimant are on the payment of the purchase price, entitled to hold and hold, all the shares in the said joint venture and also in the 5th Defendant in the ratio of 40%, 30% and 30% respectively and their Chairmen or Chief Executive Officers are entitled to be appointed as directors of the said joint venture or the 5th Defendant.

3. A declaration that the 1st and 3rd Defendants as the shareholders of the 5th Defendant (as at July, 2006 and or any other persons holding its shares) hold 60% of the shares in the said 5th Defendant in implied or constructive trust for the Claimants in the proportion of 30% thereof for each Claimant.

4. An order for the specific performance of the aforesaid contract between the 1st Defendant and the Claimants.

5. further to relief 4 above, an order directing the 1st and 2nd Defendants to cause the Claimants’ Chairmen or Chief Executive Officers to be appointed as the directors of the 5th Defendant and 30% of the shares in the 5th Defendant to be transmitted to each Claimant in line with the aforesaid contract.

6. A declaration that the 1st Defendant did not act for itself alone but acted for itself and as the agent of and also as an implied or conservative trustee of the Claimants and itself in the bid and conclusion of the bid for the concession and subsequent operation/management of Terminal C, Tin Can Island Port, Apapa, Lagos.

7. An order for all necessary and consequential accounts, execution of relevant documents by the parties, direction and inquiries and in particular directing the Defendants to render a true, fair and accurate account of the operation/management of Terminal C, Tin Can lsland Port, Apapa, Lagos including all funds, earnings, expenses, investments, profits that had accrued to or had been incurred by them, relating to or arising from, the business of the 5th Defendant and the said port with effect from the date of handing over of the said port to the 5th Defendant or to the Defendants by the Bureau of Public Enterprises and/or the Nigerian Ports Authority and audited by a Chartered Accountant independently appointed by the Court.

8. An order for the payment of the amount found to be due to the Claimants on the basis of 30% each of the shares in the joint venture or the 5th Defendant as per the aforesaid contract on the taking of such account and interest therein at the rate of 21% per annum with effect from 8/8/05 until judgment and thereafter interest at the rate of 7.5% on the judgment debt until final payment of the said debt.

9. A declaration that the 1st to 4th Defendants conspired to injure the Claimants in their trade as terminal/bonded warehouse operators and to defraud the Claimants.

10. The sum of N20 Billion against the Defendants as damages for the tort of conspiracy to injure and defraud the Claimants in their trade as terminal/bonded warehouse operators.

11. An order of perpetual injunction restraining the Defendants whether by themselves, their directors, agents, privies or servants or otherwise howsoever from further operating/managing Terminal C, Tin Can Island Port, Apapa, Lagos without including the Claimants as co-operators/managers of the said port and holders of the agreed ratio of the shares and appointing their Chairmen or Chief Executive Officers as directors of the 5th Defendant in line with the said contract.”

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. It contains four grounds of appeal.

Briefs of arguments were subsequently filed and served by the parties.

The Appellants brief of argument is dated and filed on 13-11-13 and their reply to the Respondents brief is dated and filed on 5-12-14 but deemed properly filed on 2-3-15.

The Respondent brief of arguments is dated and filed on 18-11-14. They also filed two Respondents Notice of Intention to contend. One is the Respondents Notice to affirm the decision of the Lower Court on other grounds, while the other is to vary the heading of the ruling of the Lower Court dated 5-7-2013. They are both dated 7-5-14 and filed on 8-5-14.

At the hearing of the Appeal on 4-3-2015 the parties duly adopted and relied on their briefs of argument including their lists of additional authorities.

In the Appellants brief of argument two issues were formulated for determination as follows:-

(i). Whether the Lower Court was not wrong when it failed to apply the clear and ambiguous provisions of Section 8(1) of the Limitation Law of Lagos State and in holding that the Respondents’ action was not statute barred. (Grounds 1, 2 and 3).

(ii). 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. (Ground 4)

The Respondents also formulated two issues in their brief of argument as follows:-

1. Whether the learned trial judge was right in holding that the Respondents’ action herein was not statute barred. (Grounds 1, 2 and 3).

2. Whether this action ought to have been dismissed for not being properly constituted on the ground of non-joinder of the Nigerian Ports Authority and the Bureau of Public Enterprises. (Ground 4).”

The issue raised in the parties briefs of arguments are conually similar. I will however adopt the Appellants’ two issue in resolving this appeal.

ISSUE I.
Dwelling on this issue learned, senior counsel for the Appellants, referred to Section 8(1) (a) of the Limitation Law of Lagos State to submit that it is clear and unambiguous as to the time limit within which a specified kind of action may be brought and no legal proceedings may be competently brought by any person after the expiration of the period specified by statute. Thus a cause of action becomes statute barred if legal proceedings cannot be commenced in respect of same because the time prescribed by the limitation law has elapsed. Vide = CPC VS INEC (2011)18 NWLR (PT.1279) 493 at 532; OGOH VS ENPEE IND. LTD. (2004) 17 NWLR (PT.903) 449; MUOMAH VS SPRING BANK PLC (2009) 3 NWLR (PT.1129) 553; SPDC VS AMADI (2010) 13 NWLR (PT.1210) 82 at 121; DUZU VS YUNUSA (2010) 10 NWLR (PT.1201) 80 at 111; EGBE VS ADEFARASIN (1985) 1 NWLR (PT.3) 549 at 558; THOMAS VS OLUFOSOYE (1986) 2 SC 325 at 342; N.P.A. V. LOTUS PLASTICS LTD (2005) 19 NWLR (PT.959) 158 at 180 – 181.

On the distinction between a cause of action and a right of action, the following cases were cited ADMINISTRATORS/EXECUTORS OF THE ESTATE OF GEN. SANI ABACHA VS EKE-SPIFF (2003) 1 NWLR (PT.800) 114 at 204; AYONRONMI VS NNPC (2010) 8 NWLR (PT.1197) at 639.

It was further submitted that in determining whether an action is statute barred, the court would look at the writ of summons and the statement of claim. The statement of claim will help determine when the cause of action arose while the writ of summons will help to ascertain the date the action was filed and if the date on the face of the writ exceeds the period prescribed by statute, then the action will be statute barred. Vide WILLIAMS VS WILLIAMS (2008) 10 NWLR (PT.1095) 364 at 383; AYAYI VS ADEBIYI (2012) 11 NWLR (PT.1310) 137 at 169; BRITISH AIRWAYS PLC VS AKINYOSO (1995) 1 NWLR (PT.374) 722; SPDC VS FARAH (1995) 4 NWLR (PT.391) 534 at 547; OKERE VS AMADI (2005) 14 NWLR (PT.945) 545 at 556; KOLAWOLE IND. VS A.G. FEDERATION (2012) 14 NWLR (PT.1320) 221 at 243.

Reference was then made to the averments in the statement of claim which make up the cause of action vis-a-vis the writ of summons filed on 78-7-2012 to contend that by virtue of Section 8(1)(a) of the Limitation Law of Lagos State, the Respondents’ cause of action as disclosed in the statement of claim arose between the execution of the M.O.U in July 2005 and the incorporation of the 5th Appellant to the exclusion of the Respondents in December 2005. It was further argued that the operative dates in this matter are December 2005 when the cause of action arose and 18-7-2012 when the action was instituted vide the writ of summons. Thus comparing the first operative date of 20-12-2005 when the cause of action is alleged to arise with the incorporation of the 5th Appellant and 18-7-2012 when the writ of summons was filed, the action was commenced 6 years 6 months and 29 days after the purported cause of action accrued and given the provisions of Section 8(1)(a) of the Limitation Law, the Respondents’ action is statute barred.

It was therefore submitted that the Lower Court was wrong in it’s conclusion that the action is not statute barred even though it agreed with the Appellants as to when the cause of action arose and the date the writ of summons was filed.

On the legal impossibility to validly commence an action outside the statutory period prescribed by a Limitation Law. The following authorities were referred to:- ABOYEJI VS LATEJU (2012) 3 NWLR (PT.1288) 434; OGUNKO VS SHELLE (2004) 6 NWLR (PT.868) 17; OSUN STATE GOVT. VS DALAMI (NIG) LTD (2007) 9 NWLR (PT.1038) 66 at 82; EBO VS ANADI (2012) 8 NWLR (PT.1301) 69 at 96; KOLAWOLE IND. VS. A.G. FEDERATION supra at 243 GBADEHAN VS KILADEJO (2012) 16 NWLR (PT.1326) 392 at 413.

It was further argued that by operation of law the Respondents’ right of action had been automatically extinguished upon the expiration of 6 years. Vide ETHIOPIAN AIRLINES VS AFRIBANK (NIG) PLC (2006) 17 NWLR (PT.1008) 245 at 264; OLAGUNJU VS PHCN (2011) 10 NWLR (PT.1254) 113.

On the reliance by the learned trial judge on the book, “LIMITATION PERIOD” by Andrew McGee, 8th Edition, Published by Sweet and Maxwell, page 21 in the interpretation of Section 8(1)(a) of the Limitation Law of Lagos State. Thus leading the learned trial judge to hold that time for the purpose of Limitation Law can start and stop at different points in time.

It was submitted that this was an erroneous and unnecessary conclusion because the law is trite that where the provisions of a statute are clear and unambiguous, external or extrinsic aid is not required for the interpretation of such a statute. Vide BANK OF ENGLAND VS VAGLIANO BROTHERS (1891) AC. 107; NDIC VS OKEM ENTERPRISES (2004) 10 NWLR (PT.888) 107 at 196; AWOLOWO VS SHAGARI (1979) 6 – 9 SC. 51.

It was further argued that for the purpose of applying the limitation law, the court is only to consider the date the cause of action arose and the date the writ of summons was filed. Thus, consideration of what may or may not have transpired during the intervening period is irrelevant in determining whether an action is statute barred. Reference was made to KOLAWOLE IND. CO. LTD. VS A.G. FEDERATION supra where it was held that ignorance of the limitation of time or time taken by parties to negotiate after the accrual of the cause of action are no defences. See also EBOIGBE VS NNPC (1994) 5 NWLR (PT. 347) 649 at 659 and CITY ENGINEERING LTD. VS. FHA. (1997) 9 NWLR (PT.520) 224 at 247.

Secondly, on the reliance on a foreign author by the Lower Court, it was submitted that in doing so the opinion of the said Author has been used to determine a fundamental jurisdictional issue. This, it was argued, is contrary to our laws that foreign authorities on decisions, however learned they may be, lack any binding effect on our courts. Vide INAKOJU VS ADELEKE (2007) 4 NWLR (PT.1015) 423 at 593 and YAHAYA VS STATE (2002) 3 NWLR (PT.754) 289 at 305.

It was senior counsels further submission that the holding of the Lower Court that time was put in abeyance for the purposes of the limitation law, during the prosecution of suit No:FHC/L/CS/664/2006 by the Respondents run contrary to the decision of the Supreme Court in PORTS & CARGO HANDLING SERVICES CO. LTD VS. MIGFO (2013) NWLR (Pt.1333) 555.

He added that the entire proceedings in suit No:FHC/L/SC/664/2006 which was struck out by the Supreme Court for lack of jurisdiction, is non existent on the eyes of the law. Vide SKEN CONSULT VS UKEY (1981) 1 SC. 6 at 9. Therefore, a suit which does not exist in the eye of the law cannot be the basis for suspending the computation of time for the purposes of applying the limitation law.

Further on the decision of the Lower Court that time can go into abeyance, reference was made to pages 470 to 480 of the record where the Lower Court quoted the relevant portion of the book thus:-

“Time ceases to run when the plaintiff commences a legal proceedings in respect of the cause of action in question. It is general principle (sic) of some importance that the bringing of an action stops the running of time for the purpose of that action only”.
(Underlining for emphasis).”

It was then submitted that from the foregoing portion of the book, the learned author was only stating the obvious principle of law which is that the time is calculated from the time of accrual of the cause of action up to the time of filing the action and not thereafter for the purpose of that action only, in which case the filing of a particular action becomes irrelevant in the consideration of a statute bar in another action.

Reference was further made to the ruling of the Lower Court at page 477 of the Record to submit that the finding therein that the Respondents’ suit is one for specific performance to which Section 8(1)(a) of the Limitation Law of Lagos State does not apply is inherently contradictory, having found also that the action is for declaration of rights which borders an simple contract in which case the relief of specific performance becomes incidental or ancillary and where a principal relief fails all incidental or ancillary reliefs must also fail as held in AWONIYI VS REGD. TRUSTEES OF AMORC (2000) 10 NWLR (PT.676) 522 at 539; EMERSON VS. PETROTECH (NIG) LTD (1993) 3 NWLR (PT.283) 548 and AKAPO VS HAKEEM HABEEB (1992) 6 NWLR (PT.247) 266.

Learned senior counsel also argued that it was wrong for the Lower Court to apply Section 13(1) of the Limitation Law which excludes actions strictly for specific performance from the application of Section
8(1(a) of the Limitation Law because where a court lacks the jurisdiction to grant the principal claim the entire action becomes academic and must be struck out. Vide AKINDIPE VS C.O.P. LAGOS STATE (2000) NSC QLR 894 at 906.

He added that the conclusion of the Lower Court is at odds with the binding decision of the Supreme Court in SC/42/2009 dated 8-6-2012 in PCHSC LTD VS MIGFO supra where it was held that the Federal High court lacks jurisdiction to entertain the claim which was based on simple contract. This according to him, amounts to going contrary to the principle of stare decisis which requires all courts of subordinate jurisdiction to follow and apply the decisions of superior courts of record regardless of the judges personal views or interpretations of the judgment or law applied therein. He cited the following cases:- GEBI VS DAHIRU (2012) 1 NWLR (PT.1282) 560 at 609; DALHATU VS. TURAKI (2003) 15 NWLR (PT.843) 310 at 336; ATOLAGBE VS AWUNI (1997) 9 NWLR (PT.522) 536 at 564.

ISSUE 2
Herein it was submitted that the Lower Court erred in law by its finding that the NPA and BPE are not necessary parties having sufficient interest in the subject matter of the suit.

It was further noted that the NPA and BPE are both creatures of enabling statutes, established to perform such functions as are described in their respective statutes and these functions are performed as agents of the Federal Government and were also vested with legal personalities to sue and be sued. Thus the Respondents having complained in their statement of claim that the appellants circumvented their agreement in the acquisition/bid for the subject matter of the suit i.e. (Terminal C, Tin Can Island Port, Apapa which is within the purview and management of the NPA and being concessioned by the BPE it makes both bodies necessary parties for the effective hearing and determination of the claim filed by the Respondents.

On the definition of necessary parties reference was made to the cases of BWACHA VS IKENYA (2011) 3 NWLR (PT.1235) 610 at 626; GREEN VS GREEN (1987) 7 SC (PT.11) (Reprint) 108 at 118 – 120; PEENOK INVESTMENT LTD VS HOTEL PRESIDENTIAL (1982) 12 SC 1; IDAKWO VS EJIGA (2002) 13 NWLR (PT.783) 156 at 165 – 167 and OLUMESAN VS OGUNDEPO (1996) 2 NWLR (PT.433) 628 at 645.

It was then contended that the non joinder of the NPA and BPE is fatal to the Respondents’ case which has become incompetent and improperly constituted as to parties and this robs the court of the jurisdiction to adjudicate on the matter and the court ought to strike it out accordingly.

In the Respondents’ issue I it was submitted by their learned senior counsel that though it is agreed that a cause of action becomes statute barred if legal proceedings cannot be commenced in respect of same because the time prescribed by the limitation law has elapsed, but that the cause of action in the instant case was not statute barred.

Reference was made to Section 8(1)(a) of the limitation law of Lagos State and the requirements for it to apply as well as Blacks Law Dictionary, 10th Edition on the definition of “simple Contract” as well as the words “basis” and “founded on”.

It was further submitted that a look at the reliefs endorsed on the writ of summons will show that the basis on which the Respondents’ action is supported are declaration of contractual rights, specific performance, injunction, implied or constructive trustee, account and damages for conspiracy to injure and defraud. Also that even if the declaratory reliefs are claims in simple contract as wrongly contended by the Appellants, but because specific performance, injunction, implied and constructive trustee, accounts and damages for conspiracy to injure and defraud are also other basis on which the Respondents’ action is supported, it will not be right to hold that the Respondents action is founded on simple contract as envisaged by Section 8(1)(a) of the Limitation Law because there are other reliefs on which the Respondents’ action or claim is based.

It was then further submitted that the Lower Court never agreed with the Appellants as to when a cause of action arose as wrongly stated by the Appellants, but the correct position is as shown at page 477 to 478
of the record where the Lower Court stated in its ruling that:-

“From the reliefs set out above, clearly and without any shadow of doubt the claim of the Respondent (sic) is not founded on simple contract as envisaged by Section 8 but also on declaration of right, damages and injunction.

To that extent Section 8 of the Limitation Law is not applicable to the facts of this case.”

Learned Senior counsel also engaged in an analysis of the definition of “cause of action as posited in a number of cases as well as the determination of whether a cause of action is statute barred or not and the fact that the writ of summons and statement of claim are the main source of information on the issue. Vide OWIE VS IGHIWI (2005) 5 NWLR (PT.917) 184, ADEKOYA VS FHA (2008) 11 NWLR (PT.1099) 538 and EGBE VS ADEFARASIN (1987) 1 NWLR (PT.47) 1.

It was then strongly submitted that the Appellants ought not to have referred to and considered only a few paragraphs of the statement of claim in isolation in arriving at their conclusion that the cause of action herein arose on 20-12-2005. Rather they ought for have considered the totality of the pleadings which wholly presented the case of the Respondents, as was done by the learned trial judge in arriving at his decision that the cause of action herein was not statute barred.

He added that it was wrong for a defendant relying on the defence of limitation of action to compute the time of accrual of the cause of action from the statement of defence or affidavit in support as was done by the Appellants who claimed that the cause of action arose on 20-12-2005, except such a date is admitted by the Respondents. Vide SAVANNAH BANK OF NIGERIA LTD VS PAN ATLANTIC SHIPPING TRANSPORT AGENCIES LTD. (1987) 1 NWLR (PT.49) 212; ODUBEKO Vs FOWLER (1993) 1 NWLR (PT.308) 637; WOHEREN VS EMERUWA (2004) 13 NWLR (PT.890) 398 AT 416.

It was further contended that a total perusal of the statement of claim particularly paragraphs 39 – 49 thereof will reveal that it was the certified true copies of the incorporation documents of the 5th Appellant which the Respondents discovered contrary to the joint venture agreement, only the 1st and 3rd Appellants were made shareholders and Directors of the 5th Appellant and it was immediately after this shocking discovery that the Respondents sought for a meeting with the 1st and 4th Appellants but to no avail thus prompting the Respondents to file suit No: FHC/L/CS/664/2006. In this regard computation of time will be from 7-8-2006 when the first suit was filed or even 20-7-2006 when the search reports were obtained up to 18-7-12 when the instant suit was filed at the Lower Court.

It was further argued that the reason why the Respondents’ cause of action accrued on 20-7-2006 and not on 20-12-05 as wrongly contended by the Appellants is that as revealed in paragraphs 39-45 of the pleadings the Appellants perpetrated fraud against the Respondents and concealed their right of action until the Respondents through their lawyer’s search report discovered that the 5th Appellant had been incorporated by the 1st, 3rd and 4th Appellants in breach of the Joint Ventures Agreement between the 1st Appellant and the Respondents. Thus by virtue of Section 58 of the Limitation Law of Lagos State 2003, the period of limitation cannot begin to run until the Respondents discovered the said fraud.

It was therefore submitted that the following cases cited by the appellant in support of their stance are either distinguishable or irrelevant and inapplicable to the facts and circumstance of the instant case. ADMINISTRATORS/EXECUTORS OF THE ESTATE OF ABACHA VS EKE SPIFF (2003) 1 NWLR (PT.800) 114; ETHIOPIAN AIRLINES VS AFRIBANK (NIG) PLC (supra); OLAGUNJU vs PHCN (SUPRA); AJAYI VS ADEBIYI (2012) 11 NWLR (PT.1095) 364; WILLIAMS VS WILLIAMS (SUPRA).

On the criticism of the of the learned trial judge by the Appellants, for his reliance on the Book, titled, “LIMITATION PERIOD” by Andrew McGee, 8th Edition in holding that time stopped running when the claimant commences legal proceedings in respect of the cause of action and when the proceedings are pending are not only wrong but also unnecessary. Firstly because the issue was canvassed and relied on by the Respondents in the Lower Court but the Appellants never responded to it one way or the other in their reply on points of law in which case they are deemed to have conceded to the Respondents stand on it. Vide OKONGWU VS NNPC (1989) 4 NWLR (PT.115) 296 at 309; OKOYE VS NCFC LTD (1991) 6 NWLR (PT.199) 501 at 533.

Secondly, the issue was not appealed against or challenged by the Appellants in this Appeal, in which case they should not be heard on it. See AWOTE VS OWODUNNI (1986) 5 NWLR (PT.46) 941; NARUMAL & (SONS) LTD vs NIGER BENUE TRANSPORT CO. LTD (1989) 2 NWLR (PT.106) 730 at 742; NWABUEZE VS OKOYE (1988) 4 NWLR (PT.91) 664 at 679.

Thirdly, having conceded the said new points of law in the court below as found by the learned trial judge, the Appellants are bound by it and cannot approbate and reprobate. Vide OBIORA VS OSELE (1989) 1 NWLR (PT.97) 279; JADESINMI VS OKOTIE EBOH RE LESSEY (1989) 4 NWLR (PT.113) 113 at 125.

The fourth point is that all the courts in Nigeria had always found accepted and relied on the opinions of foreign learned Authors in books or Articles in interpreting the provisions of Nigeria Laws and its constitution especially in recondite points of law as was done by the Supreme Court in some cases including OGBECHIE VS ONOCHIE (1986) 2 NWLR (PT.23) 484 at 490-492; AWOLAJA VS SEATRADE GRONINGEN BV. (1993) 3 NWLR (PT.280) 209; OSAFILE Vs ODI (NO 1) (1990) 3 NWLR (PT.137) 130, A.G. ABIA STATE VS A-G FEDERATION (2006) 16 NWLR (PT.1005) 265.

The fifth reason being that the book in question interpreted the provisions of the 1980 Limitation that of England which are in pari materia with the provisions of the limitation law of Lagos State and has been regarded as authority on the provisions of statutes of Limitation.

It was added that the cases of KOLAWOLE IND. LTD (Supra), EBOIGBE VS NNPC (Supra) and CITY ENGINEERING LTD VS FHA (Supra) relied on by the Appellants are like other cases cited by them, inapplicable, irrelevant and distinguishable from the facts of the instant case.

It was further submitted that contrary to the assertion by the Appellants in paragraphs 4.17 to 4.19 of their brief of argument, the Supreme Court in P & CHSC LTD VS MIGFO (2013) 3 NWLR (PT.1333) 555 did not hold that time did not stop running or that time stopped running for the purpose of the Limitation Law upon the filling of a suit or filing of suit No:FHC/L/CS/664/2006 on 9-8-2006 because the issue never arose for determination in the Appeal. Rather it decided the Appeal only on the issue of jurisdictions and refused to delve into the merits of other issues raised in the Appeal.

Learned senior counsel added that it was wrong for the Appellants to contend that suit No: FHC/L/CS/664/2006 cannot be the basis for suspending the computation of time for limitation period because the entire proceedings therein was struck out by the Supreme Court for want of jurisdiction and thus a nullity and no legal consequence could come out of it and even if it had any legal effect the Respondents are precluded from filing any other on grounds of res judicata. He added that, though striking out a suit brings it to a terminal end, and the judgment based thereon ceases to have binding or persuasive effect, but such striking out does not mean that the suit or the judgment based thereon has thereby ceased to exist and moreso the Supreme Court in SKEN CONSULT VS UKEY did not decide that a suit which has been struck out has ceased to exist.

On the issue of Res Judicata, it was submitted that the Appellants who did not file any statement of defence or plead res judicata in the Lower Court cannot now raise it. But even if they could, the earlier suit cannot operate as res judicata because it was struck out without determining the rights of the parties vide AMUDA VS OSHOBAJA (1984) 7 SC 68 at 100; ABDULKAREEM VS INCAR (NIG) LTD (1984) 10 SC 1 at 22; ODUOLA Vs COKER (1981) 5 SC 197 AT 252; NWAWUBA VS ENEMUO (1988) 2 NWLR (PT.78) 581 at 593.

It was also learned senior counsels submission that a careful examination of the reliefs claimed by the Respondents in their writ of summons and statement of claim will reveal that they are claims for declaration, specific performance of the joint venture agreement, implied or constructive trustee, conspiracy to injure and defraud and damages for same and perpetual injunction which are exempted from the operation of Section 8 of the Limitation Law and that the ruling of the Lower Court correctly reflected the true position of the Respondents claim such as reliefs 1, 2, 3, 6 and 9 which are declaratory and as such equitable reliefs vide A.G. RIVERS STATE VS A-G. AKWA IBOM STATE (2011) 8 NWLR (PT.1248) 31 at 172; OLOBUNTOBA-OJU VS DOPEMA (2008) 7 NWLR (PT.1085) 1; AJAGUNGBADE III VS LANIYI (1999) 13 NWLR (PT.633) 92 at 114.

Also claim 4 is for specific performance which is exempted from the application of Section 8(1) of the Limitation Law by Section 13, while claim 9 is based on fraud and deceit by the 1st Appellant and it’s agents in concealing the Respondents’ right of action and as such exempted by Section 58 of the Limitation Law and claim 11 is for perpetual injunction which is clearly an equitable remedy and also exempted by Section 13 of the Limitation Law.

It was therefore contended that, assuming without conceding that the Respondents’ claims were founded only on simple contract and time ran during the litigation of suit No: FH/L/CS/664/2006 due to the concealment and fraud on the part of the Appellants, this suit would still not have been statute barred on a combined reading of Section 7, 8, 13 and 58 of the Limitation Law.

Further submission was made that contrary to the Appellants’ assertion, the reliefs of specific performance are not incidental to the reliefs for declaration of rights and besides, Section 13 does not make a distinction between primary and ancillary claim and the reliefs sought by the Respondents did not also make such distinction and such the cases of EMERSON, AKAPO and UZOUKWU cited by the Appellants are unhelpful to their case and so are all the authorities cited and relied upon especially in paragraphs 4.2 and 4.3 of the Appellants brief relating to the fact that this suit was statute barred. This court was then urged to answer issue I in the negative.

On issue 2, learned senior counsel for the Respondents noted that the Appellants by their arguments conceded that the NPA and BPE are agents of the Federal Government but vested with the legal personality to sue and be sued and this indicates that the Appellants knew that NPA and BPE acted as agents of a disclosed principal, the Federal Government who owns the port and it is trite law that an agent who entered into a contract in his capacity as an agent for and on behalf of a disclosed principal cannot be sued in respect of the contract. He cited the cases of BAYERO VS MAINASARA & SONS LTD (2007) ALL FWLR (PT.359) 1285 at 1317; CARLEN (NIG) LTD VS UNIVERSITY OF JOS (1994) 1 NWLR (PT.323) 631; BAMBOYE VS UNIVERSITY OF ILORIN (1999) 10 NWLR (PT.622) 96; PWOL VS UNION BANK OF NIGERIA PLC (1999) 1 NWLR (PT.588) 631 at 636; A-G RIVERS STATE VS A-G AKWA IBOM STATE (2011) 8 NWR (PT.1248) 31.

In this regard, it is not NPA or BPE that should be sued as necessary party but the Federal Government.

It was however submitted that the dispute between the parties at the Lower Court borders on declaration of the rights of the Respondents and the 1st Appellant as in their joint venture agreement on the bidding for and subsequent management of Terminal C; Tin Can Island Port belonging to the Federal Government and none of the reliefs claimed is challenging the concession or the lease agreement granted by or the handing over of the port to the 5th Appellant by the Federal Government through the NPA and BPE. He added that the usefulness of the NPA and BPE in the dispute will only be as witnesses as the suit can be effectually and completely resolved without their being made parties.

Furthermore it was contended that, going by the definition of necessary parties in the case of GREEN VS GREEN Supra also relied on by the Appellants, the NPA and BPE did not come under the classification of necessary parties. Added to that is the principle that a claimant is only entitled to pursue his remedy against the defendant he conceives he has a cause of action against and should not be compelled to proceed against someone he has no intention to sue. He referred to Order 13 Rule (4) of the High Court of Lagos State (Civil Procedure) Rules 2012; JADESINMI VS OKOTIE EBOH (1989) 4 NWLR (PT.113) 13; IGBOKWE Vs KEHINDE (2008) 2 NWLR (PT.1072) 444 at 451.

In support of the contention that even if the NPA and BPE ought to have been joined as necessary parties, the proceedings would not be a nullity on the ground of lack of competence or jurisdiction but the court would deal with the matter in controversy as it relates to the right of the parties because a matter shall not be defeated because of joinder or non-joinder of a party. He relied on OKOYE VS NCFC CO. LTD (1999) 6 NWLR (PT.199) 501; ATUEGBU VS AWKA SOUTH LOCAL GOVERNMENT (2002) 15 NWLR (PT 630)(?); AYORINDE VS ONI (2000) 2 NWLR (PT.649) 348; UNION BEVERAGES LTD VS PEPSI COLA INTERNATIONAL LTD. (1994) 3 NWLR (PT.330) 1 AT 16; CAMEROUN AIRLINES VS OTUTUIZU (2011) 4 NWLR (PT.1238) 512 and Order 13 Rule 16 (1) of the High Court of Lagos State (Civil Procedure) Rules 2012.
He then urged the court to resolve the issue in favour of the Respondents.

The Appellants made an exhaustive response in their reply brief as regards the points raised in the Respondent’s brief. These shall be referred to in the course of this judgment as the need arises.

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. See ADEKOYA vs FEDERAL HOUSING AUTHORITY (2008) 11 NWLR (PT.1099) 539 where the Supreme Court held that:-
“A plea by a Defendant in any given case that an action is statute Barred is a plea which raises the issue of jurisdiction and which determinant is the writ of summons and the statement of claim.”
See also KOLO VS FBN PLC (2003) 3 NWLR (PT.886) 216 and OLAGUNJU vs PHCN PLC (2011) LPLER (2556) SC.

In the instant case, the contention of the Appellants is that the Respondents’ cause of action accrued between July 2005 when the Memorandum of Understanding was signed and 20th December, 2005 when the 5th Appellant was incorporated to the exclusion of the Respondents and in particular, computing the date the cause of action arose on 20-12-05 and 18-7-2012 when the writ of summons was filed means that the action was commenced six years, six months and twenty nine days thereafter. Thus by Section 8(1) (a) of the Limitation Law of Lagos State, the action is statute Barred.

For the Respondents, the cause of action accrued when the certified true copies of the incorporation documents of the 5th Appellant was obtained from the Corporate Affairs Commission Abuja on 20-7-2006 as shown in the said documents that the Respondents discovered that contrary to the joint venture agreement, only the 1st and 3rd Appellants became shareholders and Directors of the 5th Appellant.

Thus, when the day the cause of action accrued is properly computed either from 7/8/06 or 20-07-2006 as arrived at by the learned trial judge in his Ruling, the Respondents action is not statute barred.

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. This is moreso given the averment in paragraph 40 of the statement of claim which is herein below set out:-

It was when the claimants learnt that Terminal C had been handed over to the 5th Defendant by BPE/NPA and that the 1st, 2nd, 3rd and 4th Defendants were responsible for the incorporation of the 5th defendant that in order to confirm same, the Claimants caused their lawyers to conduct a search on the 5th defendant at the Corporate Affairs Commission, Abuja and obtain certified true copies of its incorporation documents which to their chagrin, revealed that contrary to the joint venture agreement, only the 2nd and 3rd Defendants are the shareholders and that the 1st Defendant (represented by the 2nd Defendant) and the 3rd are the Directors of the 5th Defendant which has a share capital of N10 Million divided into 10m ordinary shares of N1.00 each, and that the 1st, 2nd, 3rd and 4th Defendants are wrongly using the 5th Defendant to cheat the Claimants out of what they labored for. The Claimants may rely on the Memorandum and Articles of Association, Particulars of Directors and Return of Allotment of Share Capital dated 7/12/05 of the 5th Defendant at the trial of this Suit to inter alia show the interests and positions of these Defendants in the said 5th Defendant.

There is no doubt from the above averment amongst others, that the cause of action cannot rationally be held to accrue on 20-12-2005 when the 5th Appellant was incorporated given the facts and circumstance of the case, that the Respondents were laboring under the unfortunate illusion that the 1st Appellant was still working on behalf of the joint venture and in the interest of all the parties concerned and with little or no knowledge of the fact that the 1st, 2nd and 3rd Appellants had conspired to incorporate the 5th Appellants to fully take over and carry on the concession and management of Terminal C of the Tin Can Island Port to the absolute exclusion of the Respondents. It was only when the Respondents learnt about the hand over of the Terminal C by the NPA/BPE to the 5th Appellant and that the 1st to 4th Appellants were responsible for the incorporation of the 5th Appellant that they went in search of the truth from the right source which is the CAC and this truth which ignited their right to take necessary action in whatever way they deemed fit and proper came out on the 20-7-2006 when they obtained the certified copies of the incorporation documents.

Computing the Limitation period of six years from the said 20-7-2006 to 18-7-2012 when the Respondents commenced this action, it no doubt shows that they are still within the ambit of the six years period of Limitation as prescribed by Section 8(1) (a) of the Limitation Law of Lagos State, granted that the transaction falls within the realm of a simple contract.

Another area of serious complaint by the Appellants is the reliance by the learned trial judge in his Ruling on the book LIMITATION PERIOD by Andrew McGee, 8th Edition, page 21 to hold that time can be suspended or put in abeyance in certain instances for the purpose of computation of time. For the Appellants such reliance by the learned trial judge is not only erroneous but unnecessary given the clear provisions of Section 8(1)(a) of the Limitation Law and the fact that when a period of limitation begins to run in respect of a cause of action such period cannot be broken, reliance was placed on KOLAWOLE INDUSTRIES CO. LTD VS A.G FEDERATION (Supra); EBOIGBE VS NNPC (supra) and City ENGINEERING LTD VS F.H.A Supra. Also that foreign authorities and authors have no binding effect on our courts.

The learned trial judge in his Ruling at pages 479 to 480 of the Record held on the issue as follows:-

“Learned Counsel to the Claimant/Respondent, Mr. Mike Igbokwe San submitted that for the period when the parties were in court the computation of Limitation must be suspended.
He cited the Book titled:

Limitation Period
By Andrew Mc Gee
8th edition,
Published by
Sweet & Maxwell Page 21
To back up that contention.
I have read the relevant portion of that Book.
The Learned Author at page 21 of the Book under title:
“The running of time” stated as follows:-
“….Time ceases to run when the Plaintiff commences Legal proceedings in respect of the cause of action in question. It is general principle of some importance that the bringing of an action stops the running of time for the purpose of that action only.”
Learned Senior Counsel to the Applicants, Chief Wole Olanipekun SAN did not put forward any contrary argument on that Point.
I therefore find and I hold that time does not run between 2005 and 8th day of June, 2012 when the Supreme Court decided the matter.

I find it difficult to fault the above finding of the learned trial judge moreso that the Appellants did not react to the submissions of the Respondent wherein the said book was referred to in support. They neither addressed the issue in their reply on points of Law or oral address at the hearing of the motion. In the circumstances they are deemed to have conceded to the said point at the Lower Court as rightly held by the learned trial judge. See OKONGWU VS NNPC (1989) 4 NWLR (PT.115) 296 and MAERSK LINE VS ADDIDE INVESTMENTS LTD (2002) 11 NWLR (PT.778) 317 and NEKPENEKPEN Vs EGBEMHONKHAYE (2014) LPELR (22335) CA. where this court relying on the Supreme Court case of NWANKWO VS YAR’ADUA (2010) 3 SCNJ (PT.1) 244 at 265 held that it is settled law that where an opponent fails or neglects to counter argument or issue validly raised in the brief of argument or during oral presentation, the issue not so contested is deemed conceded by the defaulting opponent.

However given the recondite nature of the law relating to whether time ceases to run upon the filing of an action by a party, which Suit is subsequently struck out for the purpose of the Limitation Law. I am inclined to address the issue herein.
The stance of the Appellants as earlier referred to is that consideration of what may or may not have transpired during the intervening period is irrelevant in determining whether or not an action is statute barred and that when a period of limitation begins to run in respect of a cause of action, such period cannot be broken. The cases of KOLAWOLE INDUSTRIES CO LTD Vs A.G FEDERATION Supra; EBOIGBE Vs NNPC supra; CITY ENGINEERING LTD VS F.H.A Supra where relied on. Incidentally none of the cited authorities had similar circumstances as the instant case. They did not address the issue whether the filing of an action keeps the running of time in abeyance for the purpose of the Limitation Law. The view of the learned Author Andrew MC Gee expressed in his Book under reference seem however to have support with the Supreme Court case of ALHAJI HARUNA KASSIM (Trading as cash stores) vs HERMAN EBERT(1966-69) NNLR 75. The major point argued in the case both at the Lower Court and Supreme Court was that when the Suit which was struck out was relisted on 13-12-1953, the claims had become statute barred since the cause of action arose in March and May 1967 respectively.
It was therefore contended that the order of liberty to relist made on 13-12-1963 must be interpreted to mean liberty to relist within the time allowed by law. So the action having becoming statute barred, the judge had no power to make the order to relist because the action was already dead and could not be revived.
The Supreme Court per Ademola CJN while noting (as in this case) that the appeal “raises a novel point which has not hitherto come up for decision in our courts” relied on the English case of RE CLAGETTS’s ESTATE, FORDHAM VS CLAGETT (1882) 20 CH.D. 637 at 653 where it was held that:-
“A cause is said to be pending in a court of Justice when any proceeding can be taken in it. That is the test. If you can take any proceeding it is pending.”
To hold that the Plaintiff’s claim though earlier struck out but subsequently relisted was not statute barred.
In the instant case, the Respondents were not indolent or slept on their right, but exercised such right by filing Suit No FHS/L/CS/664/06 at the Federal High Court on 9-8-2006 upon discovery on 20-7-2006 that the Appellants have incorporated the 5th Appellant to manage terminal C of the Port to their exclusion. The Suit ended in favour of the Respondents both at the Federal High Court and the Court of Appeal after it was determined on the merits but at the Supreme Court the Suit was struck for want of jurisdiction by the Federal High Court to entertain the Suit in the first instance without the Apex Court delving into the merit of the case. I must pause here to register my full agreement with the submission of the learned senior counsel for the Respondents that if the Apex Court had adverted it’s mind to Section 22 of the Federal High Court Act and its decision in ALUMINIUM MANUFACTURING CO. LTD VS NPA (1987) 11 NWLR (PT 51) 475 at 497 it would have ordinarily invoked Section 22 of the Supreme Court Act to make an Order of the transfer of the Suit from the Federal High Court to the appropriate State High Court instead of an order of striking out for want of jurisdiction given that the Suit had been concluded on the merit at the two courts below. See Also MOKELU VS. FEDERAL COMMISSIONER FOR WORKS AND HOUSING (1976) 1 NMLR 329.
The said 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.”
This court in a number of cases have in similar situations invoked Section 15 of the Court of Appeal Act 2011 which is akin to Section 22 of the Supreme Court Act to make orders of transfer from the Federal High Court to the State High Court. See NYIENAKUNA V UNIVERSITY OF UYO (2014) LPELR (22651) CA; BELIEVERS FISHERIES DREDGING & ANOR VS UTB TRUSTEES LTD (2010) LPELR (3864) CA; DUMEZ (NIG) PLC VS UBA PLC (2006) 14 NWLR (PT.1000) 55 and SOCIETE INTERNATIONALE DE TELECOMMUNICATION AERONAUTIQUES (SITA) vs MAEVIES LTD. APPEAL NO.CA/L/534/2013 delivered on 10-12-2014.
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.
Thus in the instant case time ceases to run from the filing of suit No.FHC/L/CS/664/2006 on 9-8-2006 until the 8-6-12 when it was struck out by the Supreme Court. My conclusion therefore is that the instant case is not caught by the statute of limitation.
In this regard it becomes an unnecessary academic exercise to engage in the discuss whether the action is exempted from the application of Section 8(1)(a) of the Limitation Act by virtue of Sections 13 and 58 thereof.

On the whole, this issue is resolved against the Appellants.

ISSUE 2
The Appellants complaint is that the learned trial judge erred in law by making a finding that the NPA and BPE are not necessary parties having sufficient interest in the subject matter of this Suit.

The Lower Court in its ruling on the issue page 480 of the Record held thus:-

“First it is the Claimant that decides who to sue or who he feels he has cause of action against. The fact as contended at page 25 of the Applicants’ address that references were made to the Nigerian Ports Authority (NPA) and Bureau of Public Enterprises (BPE) in diverse paragraphs in the statement of claim does not ipso facto make them parties to an action.
See GREEN vs GREEN (1987) 3 NWLR (PT.761) 480. It was decide that for a person to be made a party, it must be such that the proceedings cannot be fairly, effectively and effectually conducted in the absence of such party. Again, it is the writ of summons and the statement of claim that has to be scrutinized in arriving at that decision. I have read the writ of summons and the statement of claim. It is clear that no relief is being sought against these two establishments.”

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.

What is more, it is the duty of the plaintiff to bring to court any party whose presence is crucial to the resolution of his case because only him can decide on the person he believes he has a relief against.
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. See GREEN VS GREEN Supra. PEENOK INVESTMENT LTD VS HOTEL PRESIDENTIAL, (Supra). In BELLO VS INEC (2010) 8 NWLR (PT.1196) 342, the Supreme Court held that the law is settled that no cause or matter shall be defeated by reason of mis-joinder or non-joinder of parties and the court may in every cause or matter deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. See also IBRAHIM VS OJONYE (2012) 3 NWLR (PT.1286) 108; SAPO VS SUNMONU (2010) 11 NWLR (PT.1205) 374; OKOYE vs NIGERIAN CONSTRUCTION & FURNITURE CO. LTD (1991) 6 NWLR (PT.199) 501.

Consequently, I hold that the NPA and BPE are not necessary parties in the instant suit whose presence is imperative for the effective and effectual determination of the issues in contention and there not being joined as parties is not fatal to the respondents’ case.
This issue is accordingly resolved against the Appellants.

The respondents filed two Notices of Intention to contend. The first one wants this court to affirm the Ruling of the Lower Court on other grounds. To wit:-

1. Only the writ of summons and the entirety of the fact pleaded in the statement of claim are referred to and considered for the purpose of determining whether the Respondents’ action is statute-barred and not some selected paragraphs of statement of claim and or the affidavit filed by the parties or affidavit filed by the Appellant objecting to Suit on the ground of being statute-barred.

2. As shown by the decided cases, the Respondents’ cause of action is not deemed to be completed until the Respondents had become aware of or had the evidence of wrong which formed the basis of their, or gave rise to, their cause of action.

3. Time does not run and it is an exception to the operation of the Limitation Law that as the wrong done to, or damage suffered by the Respondents is a continuing one, a fresh cause of action is caused to rise from time to time as often as the damage was caused.

4. On account of the fraud and/or concealment of the Appellants’ secret incorporation of the 5th Appellant perpetrated by the Appellants and by Section 58 of the Limitation Law, Lagos State, the statute of limitation was imperative and did not start running until the fraud and concealment were discovered by the Respondents on 20/7/05 upon the search of the affairs of the 5th Appellant at the Corporate Affairs Commission, Abuja by the Respondents.

5. The Appellants objection against non-ioinder of the Nigerian Ports Authority and the Bureau of Public Enterprises without first filling and raising same in, a statement of defence being in the nature of demurrer which has been abolished in Lagos State, is unsustainable and amounts to an admission by the Appellants of the truth of the facts in the statement of claim.

6. The Respondents were right in not suing or joining the Nigeria Ports Authority and the Bureau of Public Enterprises to this Suit since they are agents of a disclosed principal (the Federal Government of Nigeria) against which the Respondents had no grievance or claim and their non-joinder is not capable of defeating the claims of the Respondents.

Arguments in support therein were canvassed at pages 5 to 7 of the Respondents, Brief of Argument while the Appellants’ responses were contained in pages 2 to 7 of their Reply of Brief. I however observed that most the grounds therein have been adequately dealt with in the cause of consideration of the main appeal and having resolved all the issue raised against the Appellant it becomes unnecessary to embark on another expedition of digging out issues that have already been dealt with.

On the second Respondents Notice filed also on the 8-5-14 seeks however to vary the Heading of the Ruling of the Lower Court delivered on 5-7-13 as follows:-DENCA SERVICES LTD ——- 2nd Claimant/Respondent.

The grounds for seeking to vary same are:-

1. “The Reflection of the name “Pastor Banjo Olatunde Ezekiel” a. non-party to this Suit instead of “Denca Services Ltd” as the 2nd Claimant/Respondent on the heading of the Ruling of the court below dated 5th July, 2013 as shown at pages 468 of the Record of Appeal is an error due to a slip on the part of Registry or Registrar or the Secretary of the court below which typed the said Ruling.”

2. “The correction of the slip is necessary so as to properly reflect the intention of the court below in the heading of the said Ruling and avoid ambiguity or confusion as to true identities of the parties before the court below and this Honourable Court.”

The argument in support thereof is contained at pages 4 to 5 of the Respondents’ Brief while the Appellants’ response is at pages 1 and 2 of their Reply of Brief.
The Appellants in the said Reply of Brief stated emphatically as follows:-

“We are not opposed to this Honourable Court exercising its power to vary the ruling in this regard, as the name of the 2nd Respondent herein, “Denca Services Limited” was inadvertently substituted for one “Pastor Banjo Olatunde Ezekiel”, who in actual fact was not a party to the proceedings at the Lower Court. It is trite that the court has the power to vary any ruling or Judgment to correct any mistake/slip thereon. See ISYAKU RABIU ENTERPRISES LTD VS S. B. OMOBOLAYE (2006) 3 NWLR (PT.966) 195 at 202.

In the light of the non objection by the Appellants to the Respondents Notice of intention to vary the heading of the Ruling of the Lower Court delivered on 5-7-2013 to read – “Denca Service Limited” – 2nd Claimant/Respondent instead of “Pastor Banjo Olatunde Ezekiel” and having found that it is necessary to so do in order to reflect the correct parties in the Suit. The order of this court is that the heading of the ruling delivered by the Lower Court on 5-7-2013 be varied to read DENCA SERVICES LIMITED – 2nd CLAIMANT/RESPONDENT in place of “PASTOR BANJO OLATUNDE EZEKIEL.”
On the whole this appeal is found to be unmeritorious and it is accordingly dismissed.
The ruling of the Lower Court delivered by L. B. LAWAL AKAPO J. on 5-7-2013 is hereby affirmed.
N50,000 cost is awarded against the Appellants.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I had the honour of reading in print the painstaking judgment prepared by my learned brother, Samuel Chukwudumebi Oseji, J.C.A., with which I agree with these few words, by way of emphasis; more so as the issue whether limitation enactment applies to an action while it is pending in court appears to fall within dry area of jurisprudence.
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 vide Barnes v. Januis (1953) 1 WLR 649 cited with approval in Elabanjo v. Dawodu (2006) 15 NWLR (Pt.1001) 76 at 138 per the judgment of Ogbuagu, J.S.C., (as he was).
I think it is necessary to state from the onset that the purpose of any limitation enactment is to discourage and/or stamp out stale claims arising from the lethargy of the claimant whose inactivity would have caused evidence in the case to disappear or create lapse of memory of the witnesses in the case with the passage of time thus placing the opponent on disadvantage in meeting the case in court.
There is a passage in the book titled ‘Limitation Periods’ (8th Edition) paragraph 2.001 in pages 29 – 30 written by Professor Andrew McGee, (Professor of Law), which was cited by the respondents where it is stated inter alia that –
“Time ceases to run when the plaintiff commences legal proceedings in respect of the cause of action in question”.
The learned author cites the old English case of Manby v. Manby (1876) 3 Ch.101, where Malins, V.-C., held that the bringing of a creditor’s petition in an administration action saved the petition from becoming statute barred but it did not save the debt from becoming statute barred for other purposes showing time ceased to run during the pendency of the creditor’s petition only. The case of Lefevre v. White (1990) 1 Lloyd’s Rep. 569 is also cited by the learned author where Popplewell, J., held that in a personal injuries action the pendency of the action stopped time from running for the purpose of limitation period, but it did not cover the suit brought by the plaintiff against the insurers after the defendant became bankrupt and the suit against the insurers was filed outside the limitation period.
The learned author further cites the unreported case of Virgo Steamship Co. v. Skaarup Shipping Corporation decided on 21-6-88, where the plaintiffs had begun separate actions against each of two defendants. And after the expiry of the limitation period the plaintiffs sought to add first defendants in the action against the second defendants, arguing that the running of time had been suspended by the bringing of the action against the first defendants; but Hobhouse, J., held that the action brought against the first defendants was effective to stop the running of time only for the purposes of that particular action. The English Court of Appeal case of The Kapetan Markos (1986) 1 Lloyd’s Rep.211 was further referred to by the learned author in support of the same proposition.
I am persuaded by the works of Professor Andrew McGee (supra) and the foreign cases cited therein by the learned author to hold that time ceased to run for the purpose of limitation period during the pendency of the respondents’ action at the Federal High Court, the Court of Appeal and the Supreme Court between 2006 and 08-06-12.
Further, to accede to the appellants’ contention that time should not run during the pendency of an action in court for the purpose of Limitation Law would, in my modest opinion, unwittingly permit the Legislature, to take over control of the time-table of litigation indirectly or by subtle means, to wrongly/technically dictate the pace cases are heard in court under the cloak of limitation enactment. This will create the alarming scenerio in which pending cases caught by the effluxion of time and objection to their determination on the merit on account of lapse of time so upheld would meet undeserved grief. Or it may create the dangerous repercussion of stampeding the court to operate on full throttle to grapple with time in the course of which justice may be sacrificed on the altar of neck-breaking speed or indecent haste which will drain the adjudication of the dispute of the patience, fairness, diligence, or balanced/even handed justice which it is wont to have, which will be a sad day for the administration of justice vide the rewarding words of the great Jurist, Bello, J.S.C., (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.”
Consequently, to accede to the submission of the appellants that time runs for the purpose of limitation period during the pendency of an action will, with deference, not augur well for the administration of justice vide the case of Ogli Oko Memorial Farms Ltd. and Anor. v. Nigerian Agricultural and Cooperative Bank Ltd. and Anor. (2008) 4 SCNJ 436, or (2008) 3 – 4 SC 95.
Moreover, aside from constitutional restrictions/fiat no enactment can dictate the pace cases are to be heard in court. So long as a case is pending in court it is, in my modest opinion, contrary to public policy to treat time as running against the case for the purpose of limitation period provided by the limitation enactment. See for example the case of Unongo v. Aku and Ors. (supra) at 584 where the Supreme Court held per the judgment of Obaseki, J.S.C. (as he was), placing reliance on the decision of the lndiana Supreme Court, United States of America, in State of Indiana Ex Rel Andrew Kostas v. W. Johnson 168 ALR 1118 at 11122 thus –
“By these provisions of the Constitution, the three departments of government are made equal, co-ordinate and independent, Lafayette M. & B.R. Co. v. Gerger (1870) 34 Ind. 185, and no department of the government can be controlled or embarrassed by another department of the government, unless the Constitution so orders. State v. Shumaker (1928) 200 Ind. 716, 721, 164 NE 408, 63 ALR 218. Any act by which the legislature attempts to hamper judicial functions or interfere with the discharge of judicial duties is unconstitutional and void. 16 CJS, Constitutional Law S 108 p.298, 11AM Jur p.908. The principles above enunciated have been applied to statutes undertaking to fix the time within which courts shall act in certain cases or matters Rottschaefer or Constitutional Law. p.53. Archison T & S F.R. Co. v. Long (1926) 122 Okla 86, 88, 251 P 486; Schario v. State (1922) 105 Ohio St 535, 133 NE 63, 64; Riglander v. Star Co. (1905) 98 App Div 101, 90 NYS 772, 774, 775, affirmed, 181 NY 531, 73 NE 1131. In each of the cases just cited, legislation attempting to require judicial action within periods named was held unconstitutional and void as legislative interference with judicial functions.” (My emphasis).

The appellants argued that a case struck out is dead. But the Supreme Court case of Alhaji Haruna Kassim (Trading as Cash Stores) v. Hermann Ebert (1966) N.N.L.R. 75 at 76 – 77 held inter alia that a suit struck out is still pending and that –
“As Lord Jessel, M. R., put it in Re Clagett’s Estate, Fordham v. Clagett (1882) 20 Ch.D. 637 at 653, –
A cause is said to be pending in a court of justice when any proceeding can be taken in it. That is the test. If you can take any proceeding it is pending”.
We therefore find it difficult to see how the claims can be said to be statute barred, and we think the learned trial judge was right to have rejected this plea”.
The old English case of Re Clagett (supra) at 653 was also applied in the case of Renner v. Thensu and Orc. (1930) 1 W.A.C.A. 77 at 78 in which the phrase ‘pending’ was held in the judgment of Hall, J., (with Deane, C.J., and Sawry-Cookson, J., in concurrence), using the words of Jessel, M. R., inter alia to mean that –
“‘Pending’ does not mean that it has not been tried. It may have been tried years ago. In fact in the days of the old court of Chancery, we were familiar with cases which had been tried fifty or even one hundred years before and which were still pending. Sometimes, no doubt, they require a process which we call reviving, but which the Scotch call waking up; but nevertheless they were pending suits…”.
Further, 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, J.S.C., (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…..
In such a case, the plaintiff still has another opportunity to re-open the action after rectifying the deficiency that resulted in the striking out of the action. This is applicable even where the court has not included in the order of striking out that the plaintiff has an option to relist. The matter struck out has not left the cause list – as it is still a pending case or pending cause. The same procedure applies even when a matter has been decided many years ago.
Alor v. Ngene (2007) All FWLR (Pt.362) pp.1836; (2007) 17 NWLR (pt.1062) 163; Waterline Nigeria Limited v. Fawe Servies Limited FWLR (Pt.163) pg.88”. (My emphasis).
See also the Supreme Court case of Abey v. Alex (1999) 14 NWLR (pt.637) 148 at 162.
In my modest view, it follows that the revival of the action after it had been struck out was still the continuation of the same action that was struck out, so the stoppage of time during the pendency of the action that was struck out would count in favour of the renewed action at the court with the requisite jurisdiction of the court below.
The writ was taken out on 18-07-12 vide page 1 of the record of appeal (the record). While the action which had been initiated in 2006, in the same year the cause of action crystallised, ran its full course of litigation from the Federal High Court to the Court of Appeal and finally at the Supreme Court where it was struck out on appeal for want of jurisdiction of the Federal High Court on 08-06-12 as reported in (2013) 3 NWLR (pt.1333) 555 vide page 13 of the appellants’ brief of argument where the law report is referred to. Between 18-07-12 when the action was filed at the court below and 08-06-2012 when the action was struck out at the Supreme Court is less than two months showing the respondents did not tarry or delay in filing the action at the court below after they discovered from the judgment of the Supreme Court that only the State High Court has the jurisdiction to entertain the action.

Ploughing back, the initial steps the respondents took to file the action at the Federal High Court in 2006 within the same year the cause of action arose demonstrated that the respondents were not tardy in bringing the action initially at the Federal High Court and; also, the subsequent filing of the action at the court below within two months of its striking out by the Supreme Court indicated the promptness of the respondents in seeking redress for the alleged wrong done them by the appellants. The object of the Limitation Law is to penalise claimants who slumber over the enforcement of their rights, which appears not to be the case here.

The pendency of the case at the Federal High Court up to the Court of Appeal and the Supreme Court was obviously beyond the control of the respondents who were not in the position to control the time frame of the proceedings in the three Superior Courts of Record in question. The accumulation of time during the pendency of the action and the short time lag of less than two months when the respondents filed the action afresh at the court below after it was struck out at the Supreme Court indicated that the respondents did not sleep over their rights to seek redress in court.

Further, the transaction between the parties as stated in the pleadings (statement of claim) is paramountly documentary showing loss of memory of witnesses from lapse of time which is one of the grounds for the existence of limitation enactment does not arise in the case to warrant the application of the limitation enactment in question.

It follows that the contention by the appellant that a matter struck out is dead is untenable and is hereby not countenanced. Therefore, I agree with the court below when it held on the issue in its Ruling in page 482 of the record that –

“In the instant case, the litigation between the parties had been on-going for a period of 6 years (2006- 8th June, 2012). I therefore hold that time does not run in the interlude i.e., the period between 2006 to 8th day of June, 2012”.

So much on this segment of the controversy.

The court below relied on Section 13 of the Limitation Law of Lagos State 2003 (Limitation Law 2003) to hold that the reliefs sought in the action are exempt from the operation of the Limitation Law 2003. The reliefs sought in paragraph 55(1)(2)(3) and (9) of the statement of claim in pages 22 – 24 of the record are, for convenience, copied below –

“55(1) A declaration that the contents of the Technical Proposal/Bid documents dated June, 2005 and the Memorandum of Understanding dated 27/07/05, other relevant oral statements and documents made between, series of letters written by and the conduct of the Claimants and the 1st Defendant in respect of the bidding in the name of the 1st Defendant for the concession and the subsequent operation/management of Terminal C, Tin Can Island Port, Apapa, Lagos, constitute a binding contract between the Claimants and the 1st Defendant as joint-venture partners and joint bidders in respect of the operation/management of Technical C, Tin Can Island Port, Apapa, Lagos.

(2) A declaration that by the contract constituted by the Technical Proposal/Bid documents dated June, 2005, the Memorandum of Understanding dated 27/07/05 and other relevant oral statements and documents made between series of letters written by and the conduct of the Claimants and the 1st Defendant in respect of the bidding in the name of the 1st Defendant for the concession and subsequent operation/management of Terminal C, Tin Can Island Port, Apapa, Lagos; the 1st Defendant, the 1st Claimant and the 2nd Claimant are on the payment of the purchase price, entitled to hold and hold, all the shares in the said joint venture and also in the 5th Defendant in the ratio of 40%, 30% respectively and their Chairman or Chief Executive Officers are entitled to be appointed as directors of the said joint venture or the 5th Defendant.

(3) A declaration that the 1st and 3rd Defendants as the shareholders of the 5th Defendant (as at July, 2006 and or any other persons holding its shares) hold 60% of the shares in the said 5th Defendant in implied or constructive trust for the Claimants in the proportion of 30% thereof for each Claimant.

(9) A declaration that the 1st to 4th Defendants conspired to injure the Claimants in their trade as terminal/bonded warehouse operators and to defraud the Claimants. ”

The reliefs (supra) are declaratory in nature and answer to equitable/discretionary remedies vide A.G., Rivers State v. A.-G., Akwa Ibom State and Anor. (2011) 8 NWLR (Pt.1248) 31 at 172 per Adekeye, J.S.C., following the cases of Adigun v. A.-G., Oyo State (No.1) (1987) 1 NWLR (pt.53) 678, Dantata v. Mohammed (2000) 7 NWLR (pt.664) 176, Ekundayo v. Baruwa (1965) 2 All NLR 211, Nwokidu v. Okanu (2010) 3 NWLR (Pt.1181) 362. While the relief sought in paragraph 55(4) of the statement of claim in page 23 of the record is for specific performance and the relief sought in paragraph 55(11) of the statement of claim in pages 24 – 25 of the record is injunctive in scope.

Section 13(1) of the Limitation Law 2003 provides that –

“Sections 8, 9 and 11 shall not apply to any claim for specific performance of a contract or for an injunction or other equitable relief.”

The appellants’ reliance on Section 8 of the Limitation Law 2003 to predicate the plea of time bar of the action having been excluded by Section 13(1) of the Limitation Law 2003 (supra) removes the application of time bar from the reliefs sought in paragraph 55(1)(2)(3)(4)(6)(9) and (11) of the statement of claim (supra) from the purview of the Limitation Law of 2003. See the decision of the Court (Lagos Division) in John Okeze v. Nigerian Stock Brokers Ltd. and Anor. (2007) LPELR – CA/L/96/2003 per the judgment of Ogunbiyi, J.C.A., (now J.S.C.) cited by the respondents.

In addition, a glance at the statement of claim, particularly paragraphs 12, 23, 28, 39 and 41 thereof, discloses that the action also involves alleged fraudulent breach of implied and constructive trust by the 1st, 2nd, 3rd, 4th and 5th appellants on account of which the respondents had claimed the relief in paragraph 55(3) of the statement of claim in page 23 of the record thus –

“A declaration that the 1st and 3rd Defendants as the shareholders of the 5th Defendant (as at July, 2006 and or any other persons holding its shares) hold 60% of the shares in the said 5th Defendant in implied or constructive trust for the claimants in the proportion of 30% thereof for each claimant”.

For clearness, I copy paragraphs 12, 23, 28, 39 and 41 of the statement of claim below –

“12. The Claimants state that it was as a mark of respect for and trust in the professionalism, competence and skill of the 4th Defendant in accountancy and business management that the pre-qualified bidders appointed the 4th Defendant as the maiden Executive Chairman of PTOL and gave him the sole mandate to put together a team of technical experts to prepare the bidding documents and to co-ordinate all bidding processes for the intending bidders either in their individual corporate or collective names hitherto agreed to by the parties, but which trust they later found was misplaced.

23. The relationship between the joint venture partners was based on trust and confidence in each partner and also because as majority shareholders of PTOL, the joint venture partners had also bidded for and won the bid for the concession and management of Terminal A, Port Harcourt, Rivers State.

28. Notwithstanding that the 1st Defendant thus bidded for Terminal C in its name for itself and as agent and implied or constructive trustee for itself and the Claimants; after the bid for Terminal C had been won, the 1st and 4th Defendants became disloyal, secretive and together with the 5th Defendant, failed or refused to be accountable to the Claimants in the operations/management of Terminal C despite repeated demands.

39. After the success of the said bid, whilst waiting for the 1st and 4h Defendants to send the Claimants the documents for the incorporation of the agreed joint venture company to execute and to give them progress report on the negotiation of the lease agreement or Terminal C with BPE/NPA and the dates of the handover of the said port; unknown to the Claimants and in breach of the implied for constructive trust, 1st, 2nd, 3rd Defendants with the connivance and assistance of the 4th Defendant, were wrongly secretly promoting and incorporating the 5th Defendant as a vehicle to be used by them for the operation, management and maintenance of Terminal C.

41. The circumstances under which the 1st and 5th Defendants and their shareholders, acquired the operation/management of Terminal C, show bad faith, unjust and unethical business dealings calculated to overreach the Claimants and are such that they cannot in good conscience retain the beneficial interest of the lease, operation and management of Terminal C to the exclusion of the Claimants.”

In light of the fact that the transaction that led to the dispute was also based on alleged fraudulent breach of trust by 1st, 2nd, 3rd, 4th and 5th appellants as indicated in paragraphs 12, 23, 28, 39, 41 and 55(3) of the statement of claim (supra), the limitation enactment would not apply to it vide Adekeye v. Akin-Olugbade (1987) 3 NWLR (pt.60) 214 at 228 per the lead judgment of Oputa, J.S.C., (as he was, now of blessed memory) thus –
“The Court of Appeal, rightly in my view rejected the defence of limitation of actions as that defence does not by Section 32(4) of the same Limitation Law of Lagos State Cap 70 of 1973 apply to claims founded on any fraudulent breach of trust to which the trustee was a party or privy…”.
See also the concurring judgment of Aniagolu, J.S.C., (as he was; now of blessed memory) in pages 230 – 231 of the law report thus –
“Section 32(4) of the Limitation Law, Cap.70 Vol. IV, Laws of Lagos State of Nigeria, 1973 (retained as Section 32(4) of Limitation Law 2003) provides that:
“(4) No period of limitation fixed by this Law shall apply to an action against a trustee or any person claiming through him where –
(a) the claim is founded on any fraud or fraudulent breach of trust to which the trustee was party or privy, or
(b) the claim is to recover trust property or the proceeds thereof still retained by the trustee and converted to his own use”.
Where there is a fraud or fraudulent breach of trust or where, as in the present case, the claim is to recover trust property converted by the trustee (in this case the Appellants) to his own use, the Courts will chase the trustee, and in this case, recover the trust property, making the fraudulent trustee disorge any financial gains he may have made from the conversion, no matter how long it takes to do so; no matter how long he has succeeded in eluding the beneficiaries and keeping the property or proceeds thereof away from them; and no matter what changes and/or variations he has succeeded in converting the property or the proceeds …”.
See further Section 58(1) of the Limitation Law 2003.

Based on the discourse (supra) I too agree that the court below was right in holding that the Limitation Law 2003 did not apply to the case.

Although it is the duty of the plaintiff to sue all relevant and interested parties, if the plaintiff fails to do so, it does not entail that the action will fail as non joinder of a party does not defeat a claim vide Cameroon Airlines v. Otutuizu (2011) 1 – 2 S.C. (Pt.111) 200 or (2011) 4 NWLR (Pt.1238) 512 at 545 – 546 following Onayemi v. Okunibi (1966) NMLR 50.

In conclusion, I too find no merit in the appeal and hereby dismiss it and affirm the Ruling of the court below (Lawal-Akapo, J.) and abide by the consequential order(s) contained in the judgment prepared by my learned brother, Samuel Chukwudumebi Oseji, J.C.A. I commend Dr. Oladapo Olanipekun of learned counsel for the appellants and Mr. M. Igbokwe of learned senior counsel for the Respondents for their spirited briefs of argument which I found helpful in the discourse.

CHINWE EUGENIA IYIZOBA, J.C.A.: I read before now the judgment just delivered by my learned brother, SAMUEL CHUKWUDUMEBI OSEJI, JCA. I agree entirely with the judgment. His Lordship has dealt fully and comprehensively with all the issues raised in the appeal. 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 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.

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. Fortunately, Section 22 of the Federal High Court Act as amended confers the power to transfer the suit to the appropriate court instead of striking it out for lack of jurisdiction.

When it is inadvertently struck out as in the instant case, there should be a remedy. Lawal-Akapo J was right in holding the action not statute barred. I agree that the appeal lacks merit. I also dismiss it and I abide by the consequential orders in the lead judgment including the order as to costs.

Appearances

Dr. Oladapo Olanipekun with Ademola Adesina, Adetola Adeleke and Ogooluwa Ogunwumiju and O. I. SalamiFor Appellant

AND

M. I. Igbokwe (SAN) with Dr. C. O. Ukattah, Mr. M. T. Ajayi, Mrs C. I. Ochaja and Mr. I. F. NnaemekaFor Respondent