Limitation period does not run during pendency of action (3)
HE then urged the court to resolve the issue in favor of the Respondents. I have carefully perused the writ of summons which was filed on 18th July 2012 as well as the statement of claim filed the same day and contain 54 paragraphs of averments to 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 the cause of action that gave rise to the Respondent’s right of action accrued 20th July, 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.
There is no doubt from the above averment amongst others, that the cause of action cannot rationally be held to accrue on 20th December 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 acknowledge 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 handover 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 20th July 2006 when they obtained the certified copies of the incorporation documents.
Computing the limitation period of six years from the said 20th July 2006 to 18th July 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.
In the instant case, the Respondents were not indolent or slept on their right, but exercised such right by filling Suit No FHL/L/CS/664/06 at the Federal High Court on 9th August 2006 upon discovery on 20th July 2006 that the Appellants have incorporated the 5th Appellant to manage Terminal C of the Port to their exclusion.
This 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.
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 within 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.
Thus in the instant case time ceases to run from the filling of Suit No FHC/L/CS/665/2006 ON 7TH August 2006 until the 8th June 2012 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 Limitation Act by virtue of Sections 13 and 58 thereof. On the whole, this issue is resolved against the Appellants.
ISSUE 1 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.
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 and BPE and there is nowhere in the entire statement of claim where they were accused of any wrong nor shown to be likely to gain or loss 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.
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 very cause or matter deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.
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 be.ing joined as parties is not fatal to the respondents’ case.
This issue is accordingly resolved against the Appellants. 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 5th July 2013 is hereby affirmed against the Appellants.
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