• Monday, February 26, 2024
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Limitation of actions: Does the clock really stop ticking?

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The timely issuance of a Writ by Mr Evans did not operate to stop time from running against the Plaintiff, notwithstanding the fact that Mr Evans’ and the Plaintiff’s right of action was one and the same and derived from the same cause of action against the insurance company.

It is clear that the decision of the court in the LEFEVRE case is in consonance with a literal reading of Professor McGee’s general statement of the principle that upon the filing of an action, for the purposes of the limitation statutes time ceases to run only with respect to that action and not any other subsequent action which may be brought pursuant to the same cause of action on which the first action was founded. In this respect, it is clear that the decision of the Court of Appeal is irreconcilable with the LEFEVRE case.

Moving on to the KASSIM case, the brief facts and decision of which have earlier been recounted, it is difficult to see how the case can be a basis for the decision of the Court of Appeal. In the KASSIM case it was the exact same suit that had been previously struck out that was relisted by the same court that struck it out. The rationale for the KASSIM case was that even when struck out, the suit was still pending on the general cause list and upon relisting the suit could then be moved to the hearing cause list. Essentially, the suit was not caught by the statute of limitation because even though the suit was struck out, proceedings could still be taken in it as all that was required was for the suit to be relisted, to continue exactly from where it stopped before being struck out. Considering the facts and circumstances of the KASSIM case, it is very difficult to see how it could be a used as a precedent for the SIFAX case under review, for the proposition that, with respect to the statute of limitation, once an action is filed time ceases to run for subsequent actions filed pursuant to the same cause of action that the initial action was filed.

In the SIFAX case, Migfo’s initial suit had been struck out by the Supreme Court for lack of jurisdiction of the Federal High Court to entertain the matter, which led Migfo to institute a fresh action at the High Court of Lagos State which is a completely different court with different jurisdiction from the Federal High Court. At the High Court of Lagos State Sifax had to cause a fresh Writ to be issued by that court and had the matter proceeded to trial, the trial would have had to be conducted in ignorance of the struck out Federal High Court proceedings.

When the matter before the Federal High Court was struck out for lack of jurisdiction the implication, in law, was that the entire proceedings before that court was a nullity for all intents and purposes. See SALEH V. MONGUNO (2006) LPELR-2992(SC). Essentially, the Federal High Court proceedings are to be regarded, in law, as having no consequence and could confer no legal rights or obligations on any of the parties. See OSAFILE v. ODI (1990) LPELR-2783(SC). Considering the nullity of the Federal High Court proceedings, the simple question then is whether it could, for the purposes of the statute of limitation, operate to ‘freeze’ time such that Migfo’s suit which was filed at the High Court of Lagos State outside the time limited by statute was not statute barred? It is hard to see how this question could be answered otherwise than in the negative. This is because, in essence, for the purpose of the limitation statute, time never ceased to run against Migfo’s right to bring an action against Sifax in any court with competent jurisdiction to hear the matter despite the fact that Migfo had initially brought an action at the Federal High Court in respect of the same cause of action. See EBOIGBE V. NNPC (1994) LPELR-992 and GBADAMOSI LAHAN V THE ATTORNEY-GENERAL, WESTERN NIGERIA (1963) 2 SCNLR 47.

The Court of Appeal quite obviously held a different view as was stated by the court at page 81 of the report as follows:

“…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.”

Assuming that the decision of the Court of Appeal is right and the institution of the Federal High Court action did freeze time with respect to Migfo’s right to bring an action at the High Court of Lagos State several critically unresolved issues arise. Firstly, after the Federal High Court action was struck out, how much time did Migfo have left to now approach the right court with jurisdiction to entertain the action? Was it the remainder of the time left between when Migfo instituted the Federal High Court action and the final day it could have brought an action or a longer time? Assuming the answer to this question is in the affirmative, why then was it importantly identified in the decision of the Court of Appeal that Migfo brought its second action at the High Court of Lagos State quickly when it still had spare time to do so? If the exercise of a right of action through the institution of an action freezes time for the purposes of the limitation statute, will the purpose of the statute of limitation not been defeated, as a Claimant will perpetually remain entitled to exercise his right of action notwithstanding the fact that the right is statute barred? Also, the decision of the Court of Appeal being right would mean a cause of action can only generate one right of action exercisable by a Claimant and even where the exercise of that right is nullified by a court, the Claimant will still be entitled to a re-exercise of that right, thereby reviving the already nullified process.

Looking at the decision in the SIFAX case, it is doubtful that in handing down this decision, the intention of the Court of Appeal was to alter the settled principles of Nigerian law that a right of action that is statute barred is unenforceable (See EGBE v. ADEFARASIN (1987) LPELR-1032(SC)) as from the judgment there is no patent indication of such an intention. In the circumstance, it is clear that the current position of Nigerian law on limitation of actions and indeed the authorities relied on by the Court of Appeal do not support the decision of the court in this case, thereby leading to the inevitable conclusion that the decision is, with respect, erroneous in law in this regard.

The Second Ground

As already identified above, the second ground relied on by the court in reaching its decision was that any law that prescribes the time period within which a court must determine a suit is unconstitutional. In this respect, there are also reasons for why the decision of the court can be seen as having been borne out of a misinterpretation of the provisions of the law. The limitation statute in question in the SIFAX case, which was the Limitation Law of Lagos State, does not prescribe the time within which actions are to be heard and determined by the courts. In fact, section 8 of the Limitation Law, which was in issue in this case, provides that certain actions “shall not be brought after the expiration” to the time prescribed by the Law. Reading the law, it is very clear that it has nothing to do with the time within which a court must hear and determine an action pending before it as the Law is clearly targeted at the bringing of an action and not the determination of the action. This second ground of the decision of the court in the SIFAX case, does not present a better justification for the decision than the first ground as it is apparent that the interpretation given to the Law is at odds with a literal reading of the law itself.  There was also no clear prior authority cited in support of the proposition that the provision of the Limitation could rightly be interpreted in the manner done by the court in this case.

In the final analysis, considering all of the foregoing, it is clear that the decision of the Court of Appeal seems to fall out of line in terms of previous authorities on the limitation of actions, notwithstanding the fact that the decision of the court in this case is on a seemingly previously arid area of Nigerian law on the limitation of actions. As a result, it is difficult to reach a conclusion that the decision of the court in the SIFAX case has set the right precedent in this area of Nigerian law, as from the foregoing analysis the opposite is seemingly the case. Notwithstanding this, it is clear that with this decision, the jurisprudential ball has been set rolling in this admittedly novel area of Nigerian law, which should see more decisions being made by the courts in this regard.

From a humanitarian perspective, it does seem like a harsh proposition that a Claimant who is ultimately found by the Supreme Court to have approached the wrong court in the exercise of his right of action will be precluded from re-exercising that right in the appropriate court because the exercise of the right had become statute barred and consequently extinguished. This is especially in the light of the seemingly unresolved issues as to the exclusive jurisdiction of the Federal High Court which at times leaves Claimants to only find out at the Supreme Court, several years after the bringing of the action, that they had been on a wild goose chase all along in a court with no jurisdiction to hear the action. However, the courts are clearly duty bound to interpret and apply the law as it is and not as it ought to be. Without legislative intervention, it is difficult to see how the current position of the law on the limitation of actions can be so malleable as to incorporate the certainly novel principles and approach taken by the Court of Appeal in the, what will certainly be, landmark case of SIFAX NIGERIA LTD V MIGFO NIGERIA LIMITED.

MOFESOMO TAYO-OYETIBO