SIFAX NIGERIA LIMITED & 5 ORS V MIGFO NIGERIA LIMITED -SUPREME COURT OF NIGERIA – SC. 417/2015 DECIDED ON THE 16TH OF FEBRUARY 2018

53

[Action] – [Cause of Action] – [When Accrues]

ISSUES FOR DETERMINATION:

1. Whether having regard to the clear relevant provisions of the Limitation Law, Lagos State vis-à-vis the respondents’ claim, as per their statement of claim dated 18/7/2012, the lower court was not in error in affirming the trial court’s finding that the respondents’ action was not statute barred.

• Whether the lower court was in error and so divested itself of jurisdiction in holding that the cause of action that gave rise to the respondents’ right of action accrued on 20-07-2006.

• Whether the lower court was in error in affirming the trial court holding that the non-joinder of the NPA and the APE is not fatal to the respondents’ case.

FACTS:

The 1^st appellant and the respondents signed a memorandum of understanding dated 27th July 2005 to jointly bid for the concession and joint management of Terminal “C”, Tin Can Island Port, Apapa, Lagos, which was being concessioned by the Federal Government of Nigeria through the Bureau of Public Enterprises (BPE) and Nigerian Ports Authority (NPA). It was also agreed in the memorandum of understanding that if the bid was successful, a joint venture company would be incorporated by the joint venture partners to manage operations of the Port. The bid was submitted, and the joint venture partners emerged as the preferred bidders.

However, the respondents later discovered that the 1^st, 3^rd and 4^th appellants had secretly incorporated the 5^th appellant company without them; and that the Port had been handed over to the 5^th appellant by BPE and NPA. The respondents conducted a search on the 5^th appellant at the Corporate Affairs Commission (CAC), Abuja. On 20^th July 2006, they obtained the certified true copies of the incorporation documents from CAC, and the documents showed that only the 1^st and 3^rd appellants were shareholders and directors of the 5^th appellant company contrary to the terms of the memorandum of understanding.

After all efforts to resolve the issue failed, the respondents filed suit No. FHC/L/CS/664/2006 at the Federal High Court, Lagos. The judgment entered in the respondents’ favour by the Federal High Court was affirmed by the Court of Appeal on 17^th December 2008. However, on further appeal, the Supreme Court, in its judgment delivered on 8^th June 2012 and reported as Ports & Cargo Handling Services Co. Ltd. v. Migfo Nig. Ltd (2012) 18 NWLR (Pt.1333) 555, struck out the respondents’ suit on the ground that the Federal High Court lacked jurisdiction over the suit.

The respondents then commenced a fresh action at the High Court of Lagos State by a writ of summons dated and filed on 18^th July 2012. The trial court held that the respondents’ claim was not based on simple contract as envisaged by section 8(1) of the Limitation Law of Lagos State, 2003; and that because of the reliefs sought by the respondents, section 13 of the Law excluded section 8(1) of the Law from applying to the suit. Further, the trial court relied on a book, Limitation Law by Andrew McGee, and also held that time did not run between 2006 when the respondents’ first suit was commenced and 2012 when the Supreme Court decided that suit. The trial court also held that NPA and BPE were not necessary parties to the respondents’ suit.

The appellants appealed to the Court of Appeal, which held that the suit was not statute-barred and that NPA and BPE were not necessary parties to the respondents’ suit. Consequently, the Court of Appeal dismissed the appeal. Still dissatisfied, the appellants appealed to the Supreme Court, which dismissed the appeal.

HELD:

On when cause of action accrues:

The accrual of a cause of action is the event whereby a cause of action becomes complete so that the aggrieved party can begin to maintain his action. Time begins to run when the cause of action crystallizes or becomes complete. Stated differently, the cause of action accrues when the plaintiff gets to know that his enforceable claim or right has come into existence or become a present enforceable demand or right or has arisen and to prove as a fact during trial, the time a cause of action accrued or arose in determining whether a cause of action is statute barred or not, the most crucial consideration is when the cause of action arose or accrued. In this case, the respondents’ cause of action accrued when the respondents obtained the incorporation documents of the 5^th appellant from the Corporate Affairs Commission on 20^th July 2007.This is so because the document revealed that contrary to the memorandum of understanding, the respondents had been excluded from the ownership and management of the 5^th appellant.

NIGERIAN CASES REFERRED TO IN THE JUDGEMENT:

• A.G., Abia State v. A.G., Fed. (2006) 16 NWLR (Pt. 1005) 265
• A.G., Anambra State v. Okeke (2002) 12 NWLR (Pt. 782) 575
• A.G., Bendel State v. A.G., Fed. (1982) 3 NCLR1
• A.G., Bendel State v. Agbafodoh (1999) 2 NWLR (Pt. 592) 476
• A.G., Fed., v. Guardian Newspapers (1999) 9 NWLR (Pt. 618) 187
• A.G., Rivers State v. A.-G., Akwa Ibom State (2011) 8 NWLR (Pt. 1248) 31
• A.N.P.P. v. Goni (2012) 7 NWLR (Pt. 1298) 147
• Abacha v. F.R.N. (2014) 6 NWLR (Pt. 1402) 43
• Abubakar v. B.O. & A. P. Ltd. (2007) 18 NWLR (Pt. 1066) 319
• Adegbuyi v. APC (2015) 2 NWLR (Pt. 1442) 1
• Adegoke Motors v. Adesanya (1989) 3 NWLR (Pt. 109) 250
• Adekeye v. Akin-Olugbade (1987) 3 NWLR (Pt. 60) 214
• Adekoya v. F.H.A. (2008) 11 NWLR (Pt. 1088) 539
• Garuba v. Omokhodion (2011) 15 NWLR (Pt. 1269) 145
• Green v. Green (1987) 3 NWLR (Pt. 61) 480
• Harriman v. Harriman (1987) 3 NWLR (Pt. 60) 244
• Hemason Nig. Ltd. v. Petrotech Nig. Ltd. (1993) 3 NWLR (Pt. 283) 548
• Idris v. A.N.P.P. (2008) 8 NWLR (Pt. 1088) 1
• Igbokwe v. Kehinde (2008) 2 NWLR (Pt. 1072) 444
• Re: Apeh (2017) 11 NWLR (Pt. 1576) 252
• Inakoju v. Adeleke (2007) 4 NWLR (Pt. 1025) 423
• Jadesinmi v. Okotie-Eboh (1989) 4 NWLR (Pt. 113) 113
• Jallco Ltd. v. Owoniboys Tech. Services (1995) 4 NWLR (Pt. 391) 534
• Jev. v. Iyortom (2015) 15 NWLR (Pt. 1483) 484
• Kassim v. Ebert (1966) 1 SCNLR 107
• Ladoja v. INEC (2007) 12 NWLR (Pt. 1047) 115
• Lafia L.G. v. Govt. of Nassarawa State (2012) 17 NWLR (Pt. 1328) 94
• S.B.P.C. v. Purification Tech. (Nig.) Ltd. (2013) 7 NWLR (Pt. 1352) 82
• M.M.A. Inc. v. N.M.A. (2012) 18 NWLR (Pt. 1333) 506
• Management Ent. Ltd. v. Otusanya (1987) 2 NWLR (Pt. 55) 179
• Mulima v. Usman (2014) 16 NWLR (Pt. 1432) 160
• N.D.I.C. v. C.B.N. (2002) 7 NWLR (Pt. 766) 272
• N.P.A. v. Lotus Plastics Ltd. (2005) 19 NWLR (Pt. 959) 158
• Nasir v. C.S.C., Kano State (2010) 6 NWLR (Pt. 1190) 253
• NDIC v. Okem Ent. (2004) 10 NWLR (Pt. 880) 107
• Nwaogwugwu v. President, F.R.N. (2007) 6 NWLR (Pt. 1030) 237
• O.S.I.E.C. v. A.C. (2010) 19 NWLR (Pt. 1226) 273
• Obasanjo v. Buhari (2003) 17 NWLR (Pt. 850) 510
• Obiefuna v. Okoye (1964) 1 All NLR 357
• Ogbechie v. Onochie (No. 1) (1986) 2 NWLR (Pt. 23) 484
• Waziri v. Ali (2009) 4 NWLR (Pt. 1130) 178
• Williams v. Williams (2008) 10 NWLR (Pt. 1095) 364
• Woheren v. Emereuwa (2004) 13 NWLR (Pt. 890) 398
• Yahaya v. State (2002) 3 NWLR (Pt. 754) 289

NIGERIAN RULES OF COURT REFERRED TO IN THE JUDGMENT:

• High Court of Lagos State (Civil Procedure) Rules 2012, O.13 r.4, O.15r.7(2), O.22

FOREIGN CASES REFERRED TO IN THE JUDGMENT:

• Rochefouchauld v. Boustead (1897) 1 Ch. 196

NIGERIAN STATUTES REFERRED TO IN THE JUDGMENT:

• Constitution of the Federal Republic of Nigeria, 1999 (as amended), Ss.171(6), 197, 198, 199(1), 200, 201(1)(2), 208(5)
• Evidence Act, S. 128

BOOK REFERRED TO IN THE JUDGMENT:

• Andrew McGee “Limitation Period” 8th Ed.

FULL JUDGMENT

AUGIE, J.S.C. (Delivering the Leading Judgment):

This is the second time the parties are coming before this court over a dispute involving Memorandum of Understanding [MOU) dated 27/7/2005, which they put up to jointly bid for the concessioning and the joint management of Terminal ‘C’, Tin Can Island Port, Apapa, Lagos, which was being concessioned by the Federal Government of Nigeria through the Bureau of Public Enterprises (BPE) and Nigerian Ports Authority (NPA). Undoubtedly, the parties, by their ingenious arguments, expanded the scope of the issues they formulated beyond what was decided by the court below, which is untenable, and such extraneous arguments will be discountenanced.

The issue under consideration is whether the court below was right to affirm the decision of the trial court that the respondents’ suit filed at the State High Court after their earlier suit was struck out by this court is statute-barred, and it raises the questions of when the respondents’ cause of action accrued, and whether the time they spent at the wrong court should not be counted. It is an elementary principle of law that to ascertain a cause of action, the immediate materials a court should look at are the writ of summons and the averments in the statement of claim. See Dantata v. Mohammed (2000) 7 NWLR (Pt. 664) 176, and Abubakar v. Bebeji Oil and Allied Products Ltd. (2007) 18NWLR (Pt. 1066) 319 at p. 360 para. H.

In this case, the court below relied upon the averments in paragraphs 39-47, and in particular paragraph 40, of the respondents’ statement of claim to agree with them that their cause of action accrued on 20/7/2006, when they obtained the said certified true copies of the incorporation documents of fifth appellant from CAC. It is no longer in doubt that this court demands of, and admonishes the lower court to pronounce, as a general rule, on all issues properly placed before them for determination in order, apart from the issue of fair hearing, not to risk the possibility that the only issue or issues decided by them could be faulted on appeal. Failure to do so may lead to miscarriage of justice and, certainly, will have that result if the issues not pronounced upon are crucial.

In this case, the court below did what it had to do, pronounce on both issues, and as all the arguments under issue 2 lack merit it is resolved against them. Now, coming off what I will liken to a roller coaster with twists and turns, and having determined that the court below was “entitled to glean the date ”20/7/2006 from the certified true copies of the said incorporation documents, the question now is whether it was right to reason and conclude as follows:

“The respondents were laboring under the unfortunate illusion that the 1^st appellant was 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 1^st, 2^nd and 3^rd appellants had conspired to incorporate 5^th appellant to fully take over and carry on the concession and management of terminal C – to the absolute exclusion of the respondents. It was only when the respondents learned about the handover of the terminal C by the NPA/BPE to 5^th appellant and that 1^st to 4^th appellants were responsible for the incorporation of 5^th appellant that they went in search of the truth from the right source, which is CAC, and this truth, which ignited their right to the necessary action in whatever way they deemed fit and proper, came out on the 20-7-2006 when they obtained certified copies of the incorporation documents.”

It was when the claimants learnt that terminal C had been handed over to the 5^th defendant by the BPE/NPA and that 1^st, 3^rd and 4^th defendants were responsible for incorporation of 5th defendant that in order to confirm same, the claimants caused their lawyers to conduct a search on the 5th defendant at the CAC, Abuja. In other words, they learnt about it before they asked their lawyers to conduct a search at CAC, which is when they confirmed what they heard about before. Is this enough to fault the decision of the court below? Certainly not; because the court below acknowledged that they learnt about it, and went on to say that “they went in search of the truth from the right source, which is the CAC.”

I agree; they could have learnt about the handing over of the terminal to the fifth appellant and its incorporation by the first, third and fourth appellants through the grapevine or from unreliable sources or it may be beer parlour talk. CAC (Corporate Affairs Commission) oversees the regulation and supervision of the formation, incorporation, registration, management, and winding-up of companies under the Companies and Allied Matters Act (See section 7 CAMA).

What better place to confirm the incorporation of the fifth appellant company! The court below is right – they went in search of the truth from the right source. I also agree that this truth triggered their right to take necessary action. The truth they sourced from CAC confirmed that contrary to the said agreement to incorporate a joint venture company after they pulled resources together to bid for the concessioning and management of terminal C, the said appellants went behind the back of the respondents and incorporated the fifth appellant.

With such complaints, it stands to reason that their cause of action could not have arisen at the point when the fifth appellant was incorporated without the knowledge of the respondents, and contrary to what parties had agreed. The court below was, therefore, right to hold that it accrued on the 20/7/2006, when the respondents confirmed that it had been incorporated without them, and that respondents were still within the ambit of the said six years period.

That done, the next question is whether the court below is also right that the trial court had not erred in relying on the book by Professor Andrew McGee. It is generally accepted that foreign decisions are only of persuasive authority, as long as the legislation in question are im pari materia with ours. 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, Court of Appeal and Supreme Court between 2006 and 08-06-12.

It is also clear that the court below did not rely solely on the said book written by Professor Andrew McGee; it found support and corroboration, so to speak, in the case of Kassim v. Ebert (supra), wherein this court held as follows:

“We 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. Striking out of the plaintiffs/appellants’ action does not finally determine the respective rights of the parties in the dispute placed before the trial court for determination. In this situation, where the claims or rights of the parties have not been examined or looked into by the trial court and appropriate findings made thereon resulting in a determination, these claims or right effectively remain pending and can be reviewed by any of the parties in any other court of concurrent jurisdiction or even the same court that handed down the striking out order for relisting under the appropriate rules of the trial court.”

In this case, the earlier suit filed by the respondents that missed its way to the wrong court was struck out by this court. It may have been determined on its merits at the two lower courts before it got to this court but the effect of the striking out order by this court is that it is still alive and can be resuscitated. Thus, what a statute of limitation bars is the action and not the cause of action. The cause of action refers to facts he must adduce to be entitled to any relief, and the action is the medium through which he is able to ventilate those facts. I agree; the earlier suit filed by the respondents cannot be dead; it is alive and so it can be resuscitated, which is what respondents achieved, when they filed this suit at the trial court with the requisite jurisdiction to entertain this matter, and the time spent at the wrong court cannot be counted; it was suspended.

This appeal lacks merit and it is dismissed. I hereby affirm the decision of the court below and the respondents are awarded costs of N300, 000.00.

Appeal Dismissed.

LIST OF COUNSEL:

Chief Wole Olanipekun, SAN, with him, Gani Adetola-Kazeem, SAN; A.B. Ogunba, SAN with them Bolanriwa Awuyoola, Esq.; Adelani Ajibade, Esq.) – for the Appellants.

M.I. Igbokwe, SAN with him, Chioma Okwuanji, Esq., Adolphus Nwachukwu, Esq., and Winifred Tayo – Oyetibo, Esq. – for the Respondent.