By:
Kola’ Awodein SAN, FCTI, FICIArb & Misbau Alamu Lateef, Ph.D., SFHEA
I. Introduction
1. The Supreme Court’s case of Sifax Nigeria Limited v Migfo Nigeria Limited [1] is often cited as an authority for the principle that for the purpose of computation of limitation period, time ceases to run during the pendency of a previous suit on the same cause of action which was subsequently struck out for want of jurisdiction.
2. The relationship between judicial interpretation and legislative authority remains one of the most enduring tensions in common law jurisprudence. This tension becomes particularly acute when courts, faced with seemingly unjust outcomes from the application of statutes, must decide whether to adhere strictly to legislative text or to innovate judicial solutions.
3. The Court of Appeal in the very recent case of Frontera Petroleum Resources Inc. v NDIC [2] relied on the decision of the Supreme Court in Sifaxcase to come to the conclusion that the action which was instituted at the Federal High Court 4 months outside the 6 years limitation period provided by section 8 of the Limitation law of Lagos State was not statute barred because, according to the Court of Appeal, time ceased to run for the purpose of limitation period when a previous action was commenced by the Claimant against the Defendant for the same cause of action, at the Lagos State High Court which previous action was later discontinued and struck out for lack of jurisdiction. In the words of Ogakwu JCA, who delivered the lead judgment:
…the legal position is that time ceased to run for purpose of the limitation period during the pendency of the action at the High Court of Lagos State and when this is taken into consideration, the Appellant’s action is not statute barred.
4. Also, the Court of Appeal in Transocean Support Services (Nig) Ltd & Others v NIMASA & ANOR[3] relied on the Sifax case to hold that an action which was filed at the Federal High Court more than 3 years from the date of the accrual of the cause of action and thus statute barred by the provision of Public Officers Protection Act and section 53(1) of the Nigerian Maritime Administration and Safety Agency Act, 2007 was not so statute barred, on the premise of suspension of time during the pendency of previous actions that were struck out for failure to obtain leave to issue and serve their writs of summons as required, thus on a jurisdictional issue. OBASEKI-ADEJUMO, JCA, (delivering the lead judgment) relied on the decision of the Supreme Court in Sifax’s case and held thus:
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.
5. Apart from these decisions of the Court of Appeal, High Courts, holding themselves bound by the said decision in Sifax case have dutifully and faithfully applied the same in deference to the doctrine of stare decisis.
6. The pertinent question first is, whether the said Supreme Court decision is a binding principle and, if yes, can it be said to be supportable? This article argues that what the Supreme Court presented as binding precedent is, upon careful analysis, merely obiter dictum unsupported by the facts of the case. More fundamentally, even if the pronouncement were ratio decidendi, it represents and remains, with respect, an impermissible exercise of judicial law-making that exceeds constitutional boundaries.
II. The Factual Background and Procedural History
7. The facts of Sifax’s case, in brief, are that the parties entered into a memorandum of understanding (MOU) executed in 2005 to jointly bid for the concession and 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). It was agreed that if the bid is successful, a joint venture company would be incorporated by the joint venture partners to manage operations of the Port. The bid was successful.
8. However, the Respondents later discovered that the first, third and fourth Appellants had secretly incorporated the fifth Appellant company (Port and Cargo Handling Services Company Limited – PCHSCL) without them; and that the Port had been handed over to fifth Appellant by the BPE and NPA. The Respondents conducted a search at the Corporate Affairs Commission [CAC], Abuja, and got the certified true copies of the incorporation documents on 20/7/2006, which showed that only the first and third Appellants were shareholders and directors of the fifth Appellant Company, contrary to the terms of the aforesaid MOU.
9. The Respondents filed Suit No. FHC/L/CS/664/2006 at the Federal High Court, Lagos on 9/8/2006, and obtained Judgment in their favour as the Federal High Court granted all the reliefs sought. The Court of Appeal affirmed the same in its judgment delivered on 17/12/2008. However, on further appeal, the Supreme Court, in its judgment delivered on 8/6/2012, struck out the Suit on the ground that the Federal High Court lacked jurisdiction [4].
10. The Respondents (as claimants) then commenced afresh the same action at the Lagos State High Court (trial court) vide a Writ of Summons dated and filed 18/7/2012. The Appellants, as the defendants at the trial Court, reacted by filing a Preliminary Objection praying that the suit be struck out for being, inter-alia, statute barred [5]. The Appellants’ contention on the preliminary objection is that the Respondents’ cause of action from the pleadings accrued on 20/12/2005 and not 20/07/2006 as the Respondents contended.
11. The trial Court held that the action was not statute barred because, inter-alia, it was instituted at the trial court on 18/7/2012 which is still within 6 years of the accrual of cause of action (that is, 20/07/2006,) which it found from the pleadings, is the actual date of the accrual of the cause of action. The trial court however also held that, assuming the date of accrual of cause of action was earlier, (that is 20/12/2005 as contended by the Appellants), time had stopped running from the time the suit was first instituted at the Federal High Court, that is from 9/8/2006 and the Respondents will not be statute barred as they were effectively still within the 6 year limitation period as time effectively stopped running from the date of the first suit until the matter was concluded at the Supreme Court, and only continued to run from the date of the decision of the Supreme Court in that first suit, that is 8/6/2012.
12. Dissatisfied, the Appellants appealed to the Court of Appeal which Court affirmed the decision of the trial Court and dismissed the appeal. The Appellants further appealed to the Supreme Court. The Supreme Court in a unanimous judgement also affirmed the decisions of the two courts below and dismissed the Appeal.
13. Amina Augie, JSC (delivering the lead judgment of the Apex Court) held as follows:
In the circumstances of this case, the principle that a person can only sue when he becomes aware of the wrong done to him takes on deep significance when it is considered that the Respondents’ complaint is that the wrong done to them by the Appellants amounts to injustice, betrayal, breach of trust, and fraud, etc.
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. [6]
14. But the eminent Justice of the Supreme Court notwithstanding the finding and conclusion stated above did not stop there as it were. Her ladyship then proceeded to consider the question, in essence, of whether or not the Respondents would be statute barred IF the date of the cause of action was not 20/7/2006 as the Court had clearly found and confirmed but another date, namely 20/12/2005, as contended unsuccessfully by the Appellants in the lower Courts.
15. As the Supreme Court itself had earlier found on the facts that the date of the accrual of the cause of action was 20/7/2006, it was only on the above supposition that Amina Augie JSC further stated as follows:
The Respondents, on the other hand, insist that the Court below is right, and they referred in particular to the observation of Ikyegh, JCA, 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 – the Court below. The Writ was taken out on 18/7/12, While the action, which had been initiated in 2008, in the same year that the cause of action crystallized, 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 … Between 18-07-12 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 High Court has 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 that the cause of action arose demonstrated 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 to them by the Appellants. The object of the Limitation Law is to penalize 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 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 that 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 by the Supreme Court indicated that they did not sleep over their rights to seek redress in Court. It follows that the contention of the Appellants that a matter struck out is dead is untenable and is hereby not countenanced.
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. [7]
III. Distinguishing Ratio Decidendi from Obiter Dictum
16. What is quite clear from the portions of the Judgement of the Supreme Court quoted above is that the Supreme Court clearly gave two reasons for its Judgement dismissing the appeal and the question is: What is the actual ratio decidendi of the Sifax decision as indeed, it is only the ratio that is and can be binding?
17. The Apex Court itself has in the past provided some clarity as to how to determine such a question as raised above. In the case of Aeroflot Soviet Airlines v. United Bank for Africa Limited [8], sufficient guidance was given in the following illuminating words of Karibi-Whyte JSC:
wherever in a judgment two reasons appear to have been given, the ratio decidendi can only be that reason which is consistent with the facts and the claim before the Court.
18. Also, the Supreme Court in the case of Ogbechie & others v Onochie & Others [9] per Nnaemeka Agu, JSC held that: “a judgment of court ought to flow naturally from the findings or conclusions of fact made by the court.”
19. In the Sifax case, the finding and conclusion of facts reached by the 3 courts (High Court, Court of Appeal and the Supreme Court) is that the cause of action accrued on 20/7/2006 and that the suit (i.e. the second suit) which was filed on 18/7/2012, was commenced within a period of 6 years from the date of the accrual of the cause of action.
20. Indeed, the first reason given by the Supreme Court for its judgement in Sifax case is that, the cause of action, having accrued on 20/7/2006, the Respondents’ claim in the suit, which was filed on 18/7/2012, was NOT statute barred since it was commenced within 6 years of the accrual of the cause action under section 8(1)(a) of the Limitation Law of Lagos State. This reason clearly flows from the findings and conclusions of the Court, and it is the only reason that is consistent with the findings and/or conclusion of facts made by the Court.
21. As to the second reason given by the Supreme Court, below is the part of the decision of the Supreme Court which vividly captures how both the High Court and the Court of Appeal came to the conclusion that time freezes during the pendency of an earlier suit:
Another area of serious complaint by the Appellant is the reliance by the learned trial Judge in his Ruling on the book LIMITATION PERIOD by Andrew McGee, 8th Ed, 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 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 Ind. Co. Ltd. V. A.G. Fed. (Supra); Eboigbe V. NNPC (Supra) and City Eng. Ltd. V. F.H.A. (Supra). Also, those foreign 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 more so that the Appellants did not react to the submissions of the Respondents 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. 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 purpose of the Limitation Law, I am inclined to address the issue herein….
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 other words, computation of time during the pendency of an action shall remain frozen from the filing of action until it is determined or abates. Thus- time ceases to run from the filing of suit No. FHC/CS/664/2006 on 7-8-2012 until 8-6-12 when it was struck out [10]
22. The Supreme Court agreed with the above statement of both the trial Court and the Court of Appeal when her ladyship, Honourable Justice Amina Augie JSC held as follows:
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 [11]
23. From the foregooing, it is crystal clear that the second reason given by the Supreme Court did not flow from the facts and conclusion of facts in this case at all because it proceeded from the premise that the cause of action accrued on 20/12/2005, which was not the finding on the facts of the case, to wit, that the cause of action arose on 20/7/2006. Accordingly, this reason is not consistent with those facts.
24. In the circumstances and on the authority of the aforementioned cases of Aeroflot Soviet Airlines v. United Bank for Africa Limited [12] and Ogbechie & others v Onochie & others [13], the decision in the Sifax case that “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” which is based on the supposition that the cause of action arose on 20/12/2005, is not the ratio decidendi of the Court but simply an obiter dictum.
25. As stated by Iguh JSC in Afrocontinental (Nig) Ltd v Ayantuyi and others [14]:
An Obiter dictum of the Supreme Court is clearly not binding on this Court or indeed on the lower Courts, for obiter dicta, though they may have considerable weight are not rationes decidendi and are therefore not conclusive authority.
26. Consequently, the Sifax case is not an authority and should properly in our respectful view, be regarded as such, for the proposition that, for the purpose of computation of limitation period, time ceases to run during the pendency of a previous suit, on the same cause of action, but which was subsequently struck out for lack of jurisdiction.
27. Moreover, we would argue that, the reliance on the Sifaxcase by the Court of Appeal as a binding authority on the issue of the freezing of time during the pendency of a previous suit which was subsequently struck out for lack of jurisdiction cannot be supported in any way as the Supreme Court decision is not binding at all and another panel of the Court of Appeal is thus entitled and free not to follow the Sifax case, and can come to a different conclusion. Similarly, the High Courts, in our view, should consequently not hold themselves bound by it.
IV. Absence of Statutory Authority For Suspension of Time
28. The issue of limitation of action is a matter of statute. In this instance, the relevant statute considered by the Supreme Court is the Limitation law of Lagos State [15].
29. The limitation law of Lagos did not provide for freezing of time in situation like this. Indeed, the law is ominously silent on this issue. What the limitation law provides for is non-application of the limitation period where the claim is for specific performance of a contract or for an injunction or other equitable reliefs [16], revival of the accrual of cause of action in cases of acknowledgement of debt [17] and in cases of fraud time would run from the date that the fraud could have, with reasonable diligence, been discovered [18]. In other words, postponement of the running of time for the reason of fraud, mistake and acknowledgement of debt.
30. In the circumstance, it is difficult to appreciate or understand why the Supreme Court took it upon itself to give full legal effect, by its decision, to a circumstance that was not contemplated by the applicable law nor provided for. It seemed it was a deliberate effort on the part of the Court in order to supply an omission or fill a perceived gap in the law, instead of the time-tested practice or approach of advising a legislative amendment.
31. By the doctrine of separation of powers, it is the duty of the judiciary to expound and interpret the law and not to make law. Supreme Court case of A.G. Bendel State v. The Federation [19] succinctly put it thus:
What is the doctrine of separation of powers? The object of the Constitution was to establish three great departments of Government – the Legislative, the Executive and the judicial departments. The first was to pass the laws, the second to approve and execute them and the third to expound and interpret them. The object of the creation by the constitution of the three and separate departments of government is not merely a matter of convenience or of government mechanism but is basic and virtual, to preclude a commingling of different powers in the same hands. Each of the three department of government – legislative, executive and judicial should be kept completely independent of the other so that the acts of each shall not be controlled by or subjected directly or indirectly to the coercive influence of either of the others.
32. Undoubtedly, the premise undergirding the holding that time should be frozen in the circumstances of this case may have considerable merit. As stated by the respected Justice of the Supreme Court, Amina Augie JSC, in the lead judgment, agreeing with Ikyegh JCA [20]:
the object of the Limitation Law is to penalize 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 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 that 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 by the Supreme Court indicated that they did not sleep over their rights to seek redress in Court. [21]
33. However, in light of the clear provisions of the limitation law which stipulate a mandatory period of time and makes no provision whatsoever for the freezing of time when an action is filed in the wrong court, the forum for amending the law is not in the courts but in the legislature.
34. With the greatest respect and with some trepidation, we would contend that what the Supreme Court did in this case is put simply, judicial legislation. To be clear, our legal jurisprudence is replete with decisions, for good reason, which deprecate any shape or form of judicial legislation and have enjoined our Justices to resist the temptation, no matter how attractive, to embark, even for the noblest of reasons, on judicial legislation. Very few put it better than in the very strong and succinct words of two distinguished Justices of the Apex Court in the case of Olowu v. Abalore [22] and Buhari v INEC [23].
35. In Olowu v. Abalore [24] Karibi Whyte JSC put it as follows:
It is not the function of the court when construing statutes to supply omissions therein: See Customs v. Barau; (1982) 10 S.C. 48. It is one of the cardinal rules of interpretation to avoid judicial legislation and avoid making nonsense of the statute in order not to defeat the manifest intention of the Legislative.
36. In Buhari v. INEC & Others [25] Tobi JSC succinctly put it thus:
Courts of law, in interpreting the Constitution or a statute have no jurisdiction to read into the Constitution or statute what the legislators did not provide for and a fortiori read out of the Constitution or statute what is provided for by the legislators. In either way, the courts are abandoning their Constitutional functions and stringing into those of the legislature by interfering or interloping with them. As that will make nonsense of the separation of powers provided for in Sections 4 and 6 of Constitution, courts of law will not do such a thing, whatever is the pressure by Counsel.
37. As the Apex Court was so minded to right what it might have considered a seeming injustice or wrong, or perhaps an omission, it should have, with respect, followed the example of an earlier panel of the Supreme Court when faced with a similar situation, in the case of B.M. Ltd v. Woermann – Line [26]. Ogbuagu JSC who delivered the lead judgement in the case opined thus:
I must commend the appellant’s learned Counsel for the level of research and industry embodied in the Brief in favour of making a “Notify Party” one which can institute an action on contract of carriage by sea based on the bill of lading. The learned Counsel conceded that the law as to the parties to sue and be sued on a bill of lading is as amplified in Section 375(1) of the Merchant Shipping Act, Cap. 224 Laws of the Federation. He did not mince words in saying that this statute requires overhauling and advocated that this Court must revisit its decision in the cases Fassasi Adesanya v. Leigh Hoegh & Co (supra) and Broadline Enterprises Ltd v. Monterey Maritime Corporation (supra). He suggested a situation in which even if the appellant is a notify party and cannot sue in respect of the statutory provision in Section 375 (1) of the Merchant Shipping Act, the Supreme Court may exercise its equitable jurisdiction as the Supreme Court of the United States of America did in the case of CAVEAR v. SUZDAL and hold that having paid the price for the goods and the freight, the purchaser in this case the appellant even though named as “Notify Party” has proprietary and beneficial interests sufficient to entitle him to sue the carrier for the value of the goods. The appellant’s learned Counsel for this proposition relied on foreign jurisdictions and cited cases from France, United States of America and the United Kingdom. He relied on the opinion of renowned authors as well. The suggestion of the learned Counsel for the appellant is well received but the implementation by the Supreme Court will have the effect of taking this court outside its constitutional and traditional role of interpreting the laws and statutes, and plunge it unwittingly by pronouncement into usurping the constitutional role of the legislature…
…This court has a duty to interpret the applicable or operational law at the time of the occurrence of the event for which parties seek redress in court. The court must interpret the law as it is and not as it ought to be. ( underlining ours)
38. We submit most humbly that this should have been the approach of the Apex Court in the circumstances of this matter. Some advice on a change of the law would have better served the ends and interest of justice. This would not have been without precedent, for in the recent case of National Union of Electricity Employees v. Bureau of Public Enterprises [27] Chukumah-Eneh JSC recommended a change in the Constitution to include the National Industrial Court as one of the Superior Courts of Record in the Constitution when his lordship held as follows:
It means therefore that by Decree No.47 of 1992 arrogating to the National Industrial Court a superior court of record as has been contended by the appellants does not by that token make the said National Industrial Court a superior court of record without an amendment of the provisions of Section 6(3) and (5) of the 1999 Constitution which has listed the only superior courts of record recognized and known to the 1999 Constitution and the list does not include the National Industrial Court; until the Constitution is amended it remains a subordinate court to the High Court and I cite with approval the Court of Appeal decision in Attorney-General of Oyo State v. Nigeria Labour Congress (2003) 8 NWLR (Pt.821) 1 at 3 indeed a case on all fours with the instant case to the same effect. In summary, the implication of conferring exclusive jurisdiction in trade disputes on the National Industrial Court is to exclude the wide powers of the state High Court thus causing the conflict between Decree No.47 and Section 272 of the 1999 Constitution and as I have outlined above any inconsistency with Section 272 of 1999 Constitution in that regard is void to extent of the inconsistency.
V. The Misapplication of Precedent and Foreign Authority
39. What is equally challenging and difficult to appreciate or understand is just how the Supreme Court arrived at its conclusion that time did not run between the filing and conclusion of the first matter. In the lead judgment, the Apex Court reasoned thus:
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 – the Court below…
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 [28]
40. The above reasoning seems manifestly unconvincing especially because the high authorities of the Supreme Court have always stated that where a matter was struck out for lack of jurisdiction, as the earlier case was, it is as if it never existed. As stated by Belgore JSC in Petrojessica Enterprises Ltd & Another v. Leventis Technical Company Ltd [29], such action is a nullity. In Okoye v N.C.F & Co Ltd [30], the Supreme Court per Nnaemeka-Agu JSC clearly stated the effect of an action that is a nullity as follows: “When a thing is a nullity, it is as if it never existed.”
41. How can a suit that has been held to be a nullity, effectively meaning that it has never existed, still be said not to be dead but to be alive up unto the time the second suit was filed and can be resuscitated as the Supreme Court held? The Supreme Court, in taking this position, affirmed the reliance by both courts below on the commentary in the book titled “Limitation Period” [31] by Professor Andrew McGee that:
…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.
42. It is true that counsel to the Appellants here did not respond to the contention of the Respondents’ counsel on the freezing of time in reliance on the commentary in the Book as held by the trial court [32]. But a failure to respond in any way whatsoever to a contention that has no justifiable legal basis, as we would demonstrate anon, does not make the contention valid.
43. The reliance on the commentary in Limitation Period [33] which the Supreme Court upheld is in our respectful view deeply flawed. That commentary was made in a general sense and context that time would not ordinarily run once proceedings have been instituted by a party in respect of a cause of action. It is respectfully submitted that a close examination of the above statement will show that Professor Andrew McGee circumscribed his statement by the last phrase “for the purpose of that action only”. It was not made in respect of a situation, as in this case, where an earlier action has been struck out on the basis of lack of jurisdiction and another action was instituted afresh in another court as in the Sifax case. The commentary was obviously taken and relied on out of context.
44. Interestingly, the Supreme Court reproduced the concurring judgment of Ikyegh JCA at the Court of Appeal in the Sifax case, where his Lordship of the Court of Appeal gratefully referred to all the English judicial decision relied by the learned author for his commentary and none, in our respectful view, justifies the application of the commentary to the peculiar facts and circumstances of the Sifax case where the earlier suit had been struck out and a fresh suit was instituted.
45. For clarity, below is the relevant portion of the judgment of Ikyegh JCA reproduced by the Supreme Court:
The learned author cites the old English 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 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. The learned author further cited 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 Defendant in the action against the second defendant, arguing that the running of time had been suspended by the bringing of the action against the first defendant; but Hobhouse, J., held that the action brought against the first defendant 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 held 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.
46. All the authorities the learned author referred to, as shown above, clearly limits the proposition that once an action is commenced, time ceases to run for the purpose of calculating limitation period, to that action only.
47. In Manby v. Manby [34], a creditor brought an action for recovery of debt in the Court of Common Pleas against an administrator of a deceased debtor, before the action was statute barred. However, that action was abandoned and another action was instituted against the same administrator of the deceased debtor and for the same debt at the Chancery division, howbeit, outside the 6 years provided by the applicable Statute of Limitation. The Defendant pleaded that the fresh suit was statute barred while the Claimant contended that the previous suit filed at the Court of Common Pleas, saved the fresh suit from being statute barred, arguing that the fresh suit is a continuance of the previous suit filed at the Court of Common Pleas. Malins, V.C, presiding judge puts the question in Manby v Manby as follows:
Now to this extent I take it the law is clear: the action having been commenced in the Court of Common Pleas, if the writ had been renewed in that action in the Common Pleas, the Plaintiff might have gone on; he might have renewed those proceedings instead of commencing proceedings in equity on the 6th of July, and in that action he might have recovered the debt; but instead of doing so, he drops it altogether, and commences proceedings in equity. The Statute of Limitations is now set up, and the question is, therefore, whether this can be still considered a debt, or whether it is kept alive only for the purpose of the particular action commenced within the six years.
48. In answer to this question, Malins, V.C., held thus:
Now, upon principle, every Court, both of law and equity, is bound, and it is the duty of this Court to give effect to the Statute of Limitations, whether it relates to land, or to simple contract debts, or specialty debts, or any other debt, it is the duty of the Court to sustain it on broad principles which cannot be disputed.
The administrator says the cause of action, namely, the debt, arose more than six years before the commencement of this suit. The only answer is: Very true, it did occur six years before the commencement of this suit, but we had commenced a suit in another Court. But commencing the suit in another Court is, in my opinion, only a mode of keeping alive the debt in that particular action. I am therefore of opinion that, though in some sense the debt is kept alive by the issuing of the writ, it was only kept alive for the purpose of being recovered in that particular Court in which the writ was issued, and in the words of the 39th section, schedule B, of the Common Law Procedure Act, “that the alleged cause of action did not accrue within six years before the suit,” will now be a conclusive answer in that Court in which the proceedings have been taken for the recovery of debt, and the right of action cannot go beyond the period of time limited by the Act.
I am therefore of opinion that the Statute of Limitations is a complete answer to this claim, and that it therefore cannot be sustained, and must be dismissed with costs.
49. From the above excerpt of the judgment in Manby v Manby, it is crystal clear that the Court in that case held that the Statute of limitation is a complete answer to the fresh suit that was filed and that the pendency of the previous suit cannot freeze or suspend time or save the cause of action from being statute barred. This is in clear contradistinction to the decision of the Supreme Court in Sifax case.
50. Similarly, in Lefevre v. White [35], the Plaintiff was a victim of an accident caused by Mr. Evans who was insured by the Defendant. The Plaintiff successfully obtained judgment against Mr. Evans for injuries suffered. Subsequently, Mr. Evans instituted an action against the Defendant seeking for indemnity. However, before the action instituted by Mr. Evans against the Defendant was concluded, the Plaintiff obtained a bankruptcy order against Mr. Evans, which by the applicable laws, entitles the Plaintiff to stand in the position of Mr. Evans as far as the insured sum was concerned.
51. The Plaintiff subsequently brought an action against the Defendant seeking for indemnity. The Defendant raised, inter-alia, the defence of Limitation. The Plaintiff relied on the previous suit filed by Mr. Evans to contend that time stopped running for the purpose of limitation once that previous suit was filed. The English Court rejected the contention that the previous suit saved the fresh suit from being statute barred. In so doing, Mr. Justice Popplewell held as follows:
…I do not accept the argument that the issue of the writ by Mr. Evans in any way preserved the position of the Plaintiff in relation to limitation. I look at the action which is presently before me, which is the action between the Plaintiff and the Insurers. It is outside the limitation period, and it is therefore out of time.
It follows therefore that in my judgment the Plaintiff’s claim against the Insurers is statute barred and for that reason also, the Plaintiff’s claim must fail. Accordingly, I give judgment for the defendants.
52. Again, it is obvious in Lefevre v. White [36] that the English Court also rejected the argument that the commencement of a previous suit will suspend or freeze computation of time for the purpose of limitation in another suit, as upheld by the Supreme Court in Sifaxcase. It was therefore, with respect and humility, wholly inappropriate and wrong for the Court to place any reliance on the commentary.
53. Furthermore, Amina Augie JSC in the lead Judgment in the Sifax case also relied on the case of Alhaji Haruna Kassim v Herman Ebert [37] as justification for the holding that the earlier suit is not dead and can be resuscitated in the court with requisite jurisdiction. This is how Amina JSC put it:
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 –“As Lord Jessel, M.R. put it in Re Clagett’s Estate, Fordham v. Clagett (supra) – 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 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.
In this case, the Parties bandied arguments about the striking out of suits filed vis-a-vis the dismissal of same, but it is not necessary, in my view, to go into it. The truth is that so far there has been no decision of this Court on the issue of whether limitation period shall not count during the pendency of an earlier suit. In such a situation, it is obvious that the Court below did what Courts do — look around for principles in decided cases that will proffer answers thereto. So, even though the case of Kassim V. Ebert (supra) dealt with the issue of relisting a matter that had been struck out, it is the principle therein that counts because a Suit that is struck out has not been disposed of permanently and by the authority of Kassim V. Ebert (supra), it is still pending and can be relisted. [38]
54. The brief facts of Kassim’s case is that the plaintiff sued for a debt before it was statute barred. But because the plaintiff counsel did not file the statement of claim, the suit was struck out “with liberty to relist without payment of further summons fees.” The plaintiff subsequently obtained an order to relist the suit. When the said suit was relisted, the defendant claimed that the suit was statute barred and could no longer be brought. The Supreme Court held in Kassim’s case that since the suit was struck out with liberty to relist, an application could be made to relist even outside the time limited by the statute of limitation because the suit remained a pending cause. So, when it was relisted, it was still the old suit and not a new one.
55. With respect, the Kassim case is wholly distinguishable from Sifax case and should not have been relied upon.
56. Honourable Justice Oputa JSC in the case of Adegoke Motors Ltd v Adesanya & Others [39] cautioned against applying the principles in a decided case to another case where the facts are distinguishable. In his words:
From the arguments put forward, both in the briefs and oral submissions of the parties, it is evident that the parties interpreted our various decisions where Sections 97, 98 and 99 of the Sheriffs and Civil Process Act were mentioned; especially Skenconsult (Nig.) Ltd. and anor. v. Ukey (1981) 1 S.C. 6 and Ezomo v. Oyakhire (1985) 2 S.C. 260;(1985) 1 N.W.L.R. (Pt.2) 195 differently and arrived at different conclusions as to what exactly this Court decided in those cases. It also appeared in rather bold relief that there is now a tendency among our lawyers, and sometimes among some of our Judges, to consider pronouncements made by Justices of the Supreme Court unnecessary isolation from the facts and surrounding circumstances those particular cases in which those pronouncements were made. I think it ought to be obvious by now, that it is the facts and circumstances of any given case that frame the issues for decision in that particular case. Pronouncements of our Justices whether they are rationes decidendi or obiter dicta must therefore be inextricably and intimately related to the facts of the given case. Citing those pronouncements without relating them to the facts that induced them will be citing them out of their proper context, for, without known facts, it is impossible to know the law on those facts. The facts and circumstance of the recent case of Ben Obi Nwabueze & anor. v. Justice Obi Okoye (1988) 4 N.W.L.R. (Pt.91) 664 and the decision and pronouncements of this Court in that case, all too clearly illustrate the point here being made – that Court’s decisions and pronouncements derive their strength, their persuasive potency, their inspiration and therefore their value as precedent from the facts of the case as pleaded and as presented.
57. It is of course true, in the words Ikyegh, JCA which Amina Augie JSC agreed with, that:
The pendency of the case at the Federal High Court 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 that 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 by the Supreme Court indicated that they did not sleep over their rights to seek redress in Court” [40], but given the very clear language of the provision of the Limitation Law of Lagos State, we submit that, when the earlier action was ultimately struck out by the Supreme Court, the time spent pursuing that action undoubtedly counts against the subsequent action and the claimant will be statute barred once outside the period provided by the limitation law.
VI. Constitutional and Practical Challenges in Forum Selection
58. It should further be appreciated that in the first suit, the Supreme Court was neither invited to nor did it suo motuconsider the question whether or not it was appropriate to invoke the provisions of Section 22 of the Federal High Court Act to transfer the earlier case to the State High Court after holding that the Federal High Court has no jurisdiction to entertain the earlier suit. So, the matter having thus been accordingly struck out for lack of jurisdiction, that is the end of the matter, for the law is that it is as if the suit never existed.
59. But even on the matter of whether or not the provision of Section 22 can properly be invoked to order the transfer of a matter from the Federal High Court to the State High Court is not, with respect, as simple as the concurring judgement of Mary Peter-Odili JSC in the Sifax case appears to suggest when Her Ladyship said as follows:
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 to plead the 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… [41]
60. We would argue that the question clearly arises as to whether Section 22 of the Federal High Court Act, in so far as it can be interpreted to mean that the Federal High Court can effectively transfer a case to the State High Court, is not unconstitutional. This must be so because under our Constitutional structure of federalism, there is clearly an effective separation of powers. Thus, the Federal High Court Act, being a law made by the National Assembly, is not binding on the Lagos State High Court, as the Federal Act cannot, by such a provision for an order of transfer, constitutionally regulate the practice and procedure of the Lagos High Court, which is within the exclusive purview of the Lagos State House of Assembly.
61. In Fasakin Foods Nig. Ltd v. Shosanya [42], the Supreme Court had cause to examine the constitutionality of the provisions of section 22 (3) of the Federal High Court Act vis-à-vis section 239 of the 1979 Constitution (which is in pari materiawith section 274 of the 1999 Constitution and concluded that it is unconstitutional. In his Lordship words, Ogbuagu JSC (delivering the lead judgment) stated thus:
The court below, at pages 98 and 99 of the records, rightly, in my respectful view, stated as follows:
There can be no doubt that section 22(3) of the Federal High Court Act, Cap. 134, Laws of the Federation, 1990 to the extent that it sets out what a State High Court should do if the State High Court is of the view that a cause or matter should have been initiated in the Federal High Court and not in a State High Court, is clearly not in conformity with section 239 of the 1979 Constitution which vests such legislative authority on the State House of Assembly. The argument of the respondent that the Federal High Court Act Cap. 134 LFN being an existing law could be modified to bring it in line with the 1979 (or 1999 Constitution) overlooks the facts that what is in issue here is not textual inconsistency of the said section 22(3) Cap. 134, 1990 with any other law or Constitution but rather that the National Assembly could not in any case legislate over the practice and procedure in a State High Court. At the time the 1979 Constitution came into force, Lagos State has its State High Court law which was Cap. 52, 1973 Laws of Lagos State.
62. Going further, his lordship held thus:
However, let me now deal with the constitutionality of Section 22(3) & (4) of the Act vis-a-vis a State High Court. The provision of Section 233 of the 1979 Constitution, is clear and unambiguous. Section 22(3) & (4) of the Act in effect, is legislating for the State High Courts in an Act or provision, it has no power to do or make. The Constitution, as has been well settled, is Supreme; the Organic or fundamental law and it is the grundnorm of Nigeria….
This court, has, therefore, the jurisdiction, to declare any other law or Act inconsistent with the provisions of the Constitution, invalid and therefore, null and void…
This is because, the Constitution, has also been described as the fons et origo. This is why, it has made provisions for the procedural law applicable in the various courts established by it in Sections 216, 227, 233, 239, 244 and 249. This is also why, being the foundation of all laws, its provisions, must be read in their clear and ordinary meaning. Any Act which, infringes or runs contrary to those organic principles or systems or provisions, must be declared to be inconsistent.
63. Onnoghen JSC (as he then was) in his concurring judgment in Fasakin Foods (Nig) Ltd v Shosanya[43] hit the nail on the head and declared section 22(3) void when he held as follows:
It is therefore my considered view that Section 22(3) of the Federal High Court Act is clearly in conflict with the provisions of Section 239 of the 1979 Constitution and consequently void to the extent of that inconsistency.
64. Of course, the position would be even more challenging or obvious where the case was earlier instituted in the State High Court and now has to be commenced afresh in the Federal High Court or the National Industrial Court as there is understandably, no provision relating to transfer of cases to any other Court under the State High Court laws. See the case of Aluminum Manufacturing Co. (Nig) Ltd v NPA [44] where Obaseki JSC held thus:
The question that arises in this matter is whether there is power in a State High Court, in this case, Lagos State High Court to transfer a matter which it has no jurisdiction to entertain. The clear answer is in the negative in such cases, the order it has power to make is an order striking out the matter.
65. The practical consequence of this constitutional limitation is that litigants face a jurisdictional minefield when navigating between the Federal High Court, State High Courts, and the National Industrial Court. The question of which court has jurisdiction to entertain certain disputes – particularly in commercial matters, labour disputes, and matters touching on federal legislation – continues to generate significant litigation. Without the ability to transfer matters between these coordinate courts of first instance, and without a statutory mechanism to preserve limitation periods during such jurisdictional odysseys, claimants are placed in an untenable position.
VII. Constitutional Implications and Separation of Powers
66. The Sifax decision raises profound questions about the proper limits of judicial power in Nigeria’s constitutional framework. The doctrine of separation of powers, enshrined in the Constitution, assigns distinct roles to each branch of government. As the Supreme Court itself articulated in A.G. Bendel State v. The Federation:
The first was to pass the laws, the second to approve and execute them and the third to expound and interpret them… Each of the three departments of government — legislative, executive and judicial should be kept completely independent of the other so that the acts of each shall not be controlled by or subjected directly or indirectly to the coercive influence of either of the others. [45]
67. By creating a new exception to limitation periods without statutory authority, the Supreme Court transgressed this fundamental boundary. The argument that harsh results justify judicial innovation – what some scholars celebrate as pragmatism – fundamentally misunderstands the judicial role. As Karibi-Whyte JSCwarned in Olowu v. Abalore:
It is not the function of the court when construing statutes to supply omissions therein… It is one of the cardinal rules of interpretation to avoid judicial legislation.[46]
68. The comparative example of India’s Limitation Act 1963 illustrates the proper approach. Section 14 of that Act explicitly provides for exclusion of time spent prosecuting proceedings in courts lacking jurisdiction, subject to specific conditions including good faith and due diligence.[47] This legislative solution, with its built-in safeguards, contrasts sharply with the Supreme Court’s blanket judicial declaration.
VIII. The Indian Model – Section 14 of the Limitation Act 1963
69. It is perhaps helpful to appreciate that The Limitation Act 1963 of India has an effective provision to deal with circumstances of this nature. Section 14 of the Limitation Act of India provides as follows:
Section 14 – Exclusion of time of proceeding bona fide in court without jurisdiction
(1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.
(2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.
(3) Notwithstanding anything contained in rule 2 of Order XXIII of the Code of Civil Procedure, 1908 (5 of 1908), the provisions of sub-section (1) shall apply in relation to a fresh suit instituted on permission granted by the court under rule 1 of that Order, where such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the court or other cause of a like nature.
Explanation. For the purposes of this section,
(a) in excluding the time during which a former civil proceeding was pending, the day on which that proceeding was instituted and the day on which it ended shall both be counted;
(b) a plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding;
(c) misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction.
70. This Indian statutory provision demonstrates precisely what a properly crafted legislative solution to the problem identified in Sifax should look like. This is manifest is several ways in that the provision:
(a) Explicitly provides for exclusion of time spent in courts lacking jurisdiction;
(b) Imposes conditions of “due diligence” and “good faith”to prevent abuse;
(c) Applies only where the proceeding “relates to the same matter in issue”;
(d) Provides clear guidance on how to compute excluded time;
(e) Extends protection to appellate proceedings;
(f) Addresses specific scenarios including misjoinder of parties.
71. The limitation law of Lagos State does not contain such provisions as in the Indian Limitation law and we submit that the better and more effective approach to meeting the challenge rightly identified by the Apex Court in the Sifax case is for an across the board amendment of the Limitation laws in the States and the Federal law (for the Federal Capital Territory). We will submit that it is about time too.
72. There is therefore the challenge that without legislative guidance and parameters as in the Indian limitation law, a less than diligent litigant can, in bad faith, especially when a jurisdictional objection has been raised successfully against the litigant, fail to pursue his appeal with dispatch and thus unfairly and unjustly keep a suit hanging over a defendant for an indeterminate number of years and undermine the defendant’s ability to effectively defend the suit on its merits, in the event that the defendant is ultimately successful on the objection at the Apex Court.
73. But the present challenge for litigants, that this part of the decision in Sifax case creates, apart from the possibility of conflicting decisions of the Court of Appeal on whether or not the decision in Sifaxcase on the freezing of time is binding and what its true effect actually is, there is also the reality that unless the Limitation law is amended across board, another panel of the Supreme Court can, in appropriate circumstances, where the facts and circumstances justify a proper consideration and determination, take a contrary position.
IX Practical Consequences and Uncertainty
74. The practical implications of Sifax extend far beyond the immediate parties. By introducing uncertainty into limitation calculations, the decision undermines the very purpose of limitation statutes – providing clear, predictable time boundaries for legal claims. Several problematic scenarios emerge:
75. First, the decision provides no guidance on when suspended time begins running again. Does limitation resume immediately upon striking out? After a reasonable period for refiling? The Court’s silence creates a trap for unwary litigants who may assume indefinite suspension.
76. Second, the logic of the decision could enable deliberate manipulation. A claimant approaching the limitation deadline might intentionally file in a court of doubtful jurisdiction, secure in the knowledge that any time spent there will not count against them. This potential for abuse undermines the policy rationale of limitation laws.
77. Third, the interaction between federal and state high courts becomes increasingly complex. The unconstitutionality of Section 22 of the Federal High Court Act, as established in Fasakin Foods Nig. Ltd v. Shosanya, [48] means that the Federal High Court cannot effectively transfer matters to state courts. The Sifaxprinciple thus creates a one-way ratchet where time spent in federal high court benefits claimants without corresponding protection for defendants.
X. The Path Forward: Legislative Reform, Not Judicial Intervention.
78. The sympathetic facts of Sifax – parties who diligently pursued their claim only to discover years later they had chosen the wrong forum – admittedly present a compelling case for reform. However, the solution lies not anywhere else, but in legislative amendment. The Supreme Court’s proper course was to follow the example set in B.M. Ltd v. Woermann-Line, where Ogbuagu JSCacknowledged the harshness of existing law while recognising that:
the implementation by the Supreme Court will have the effect of taking this court outside its constitutional and traditional role of interpreting the laws and statutes.[49]
79. Recent scholarship has called for comprehensive reform of Nigeria’s limitation laws, highlighting their outdated provisions and harsh effects.[50] Such reform could address not only the jurisdiction-shopping problem exposed by Sifax but also broader issues including discoverability principles, disability provisions, and alternative dispute resolution tolling. Until such legislative intervention occurs, however, courts must resist the temptation to legislate from the Bench.
XI. CONCLUSION
80. In the final analysis, we would make the argument that a suit that has been declared a nullity cannot stop the computation of time for the purpose of determining whether an action is statute barred. Thus, in Sifax case, between the assumed date the cause of action arose and the date the action was instituted at the Lagos State High Court, the statutory time for instituting the action continues to run and the action at the Federal High Court which was declared a nullity cannot, when properly considered, act as an intervening action that would freeze the computation of time, in the absence of appropriate legislation similar to the aforesaid provisions of the Indian Limitation Act.
81. We would answer the question posed at the outset in the negative and contend with the greatest respect, that the decision of the Supreme Court in Sifax case, that time froze for the purpose of the computation of time under the Limitation law, in respect of a fresh suit commenced after an earlier suit on the same cause of action has been struck out for lack of jurisdiction, is neither supportable nor right.
82. The persistence of this flawed doctrine in subsequent Court of Appeal decisions – particularly Frontera Petroleum Resources Inc. v NDIC and Transocean Support Services (Nig) Ltd v NIMASA – demonstrates how judicial overreach, once sanctioned by the apex court, can distort an entire area of law. Lower courts, bound by stare decisis, have applied Sifax’s suspension principle without recognising that it was obiter dictum and not of any binding effect.
83. We do humbly invite the Supreme Court on the appropriate set of facts and circumstances and at the earliest opportunity to revisit it in order to clarify the true position of the law on the point.
84. This is particularly necessary as the present controversy over whether or not Sifax case has a binding effect on lower courts and or is in fact a correct decision on the point needs to be quickly and firmly put to rest to ensure certainty on this jurisdictional matter .
85. The proper remedy requires both judicial and legislative action. The Supreme Court should, at the earliest opportunity, clarify that Sifax’s suspension principle was obiter dictum and, in any event, wrongly decided. Simultaneously, state legislatures should modernise their limitation laws to address the legitimate concerns raised by cases like Sifaxthrough carefully crafted statutory provisions modelled on Section 14 of the Indian Limitation Act, rather than through judicial improvisation.
86. The sympathetic facts of Sifax – parties who diligently pursued their claim only to discover years later they had chosen the wrong forum – admittedly present a compelling case for reform. However, the solution lies not in judicial overreach but in legislative amendment. Until such legislative intervention occurs, however, courts must resist the temptation to legislate from the bench, or impose personal predilections of sound public policy, no matter how attractive the equitable outcome may appear in individual cases.
87. The Supreme Court’s decision in Sifax v Migforepresents a watershed moment in Nigerian limitation law, but not for the reasons commonly supposed. Rather than exemplifying beneficial judicial pragmatism, it demonstrates the dangers of result-oriented conclusion that subordinates legal principle to perceived fairness in individual cases. By manufacturing a limitation exception without statutory authority, based on reasoning that was obiter dictum, the Court exceeded its constitutional role and introduced unnecessary uncertainty into commercial litigation.
88. The proliferation of subsequent cases relying on Sifax underscores the importance of accurately identifying and limiting problematic precedents. Lower courts, bound by stare decisis, have extended Sifax’s suspension principle without recognising its fundamental flaws. This cascade effect demonstrates how judicial overreach, once initiated by the apex court, can distort entire areas of law.
89. The proper remedy requires both judicial and legislative action. The Supreme Court should, at the earliest opportunity, clarify that Sifax’s suspension principle was obiter dictum and, in any event, wrongly decided. Simultaneously, state legislatures should modernise their limitation laws to address the legitimate concerns raised by cases like Sifaxthrough carefully crafted statutory provisions rather than judicial improvisation. Only through such coordinated reform can Nigeria’s limitation law regime provide both certainty for commercial actors and fairness for diligent litigants who choose the wrong initial forum.
90. The tension between strict statutory interpretation and equitable results will persist in any legal system. However, the resolution of this tension must respect constitutional boundaries and the proper allocation of law-making authority. Sifax v Migfoserves as a cautionary tale of what happens when courts, however well-intentioned, forget these fundamental constraints. The persistence of its flawed doctrine years later only underscores the importance of getting these basic principles right.
FOOTNOTES
[1] (2018) 9 NWLR (Pt 1623) 138.
[2] Frontera Petroleum Resources Inc. v NDIC (2024) LPELR-62451(CA).
[3] Transocean Support Services (Nig) Ltd & Others v NIMASA & ANOR (2023) LPELR-61987(CA).
[4] Ports and Cargo Handling Services Company Ltd v Migfo Nigeria Ltd (2012) 18 NWLR (Pt 1333) 555.
[5] Under Section 8(1)(a), Limitation Law of Lagos State, Cap L8, Laws of Lagos State 2003.
[6] Sifax (Nig) Ltd v. Migfo (Nig) Ltd, note 1 supra, at 178.
[7] Ibid., at 182.
[8] Aeroflot Soviet Airlines v. United Bank for Africa Limited(1983) 1 SCNLR 110.
[9] Ogbechie & others v Onochie & Others (1986) 2 NWLR (Pt.23) 484.
[10] Sifax, note 1 supra, at 176-177.
[11] Ibid., at 182.
[12] Aeroflot Soviet Airlines, note 8 supra.
[13] Ogbechie & others v Onochie, note 9 supra.
[14] Afrocontinental (Nig) Ltd v Ayantuyi and others(1988) 2 NWLR (Pt.75) 326.
[15] Limitation Law of Lagos State, Cap L8, Laws of Lagos State 2003.
[16] Section 13, Limitation Law of Lagos State.
[17] Section 23, Limitation Law of Lagos State.
[18] Section 32, Limitation Law of Lagos State.
[19] A.G. Bendel State v. The Federation (1981) 10 SC 1; (1981) 2 NCLR 208.
[20] See concurring judgment of Ikyegh JCA in Sifaxcase, reproduced in the Supreme Court judgment, note 1 supra.
[21] Sifax, note 1 supra, at 180-181.
[22] Olowu v. Abalore (1985) 2 NWLR (Pt.7) 752.
[23] Buhari v INEC & Others (2008) 19 NWLR (Pt.1120) 246.
[24] Olowu v. Abalore, note 22 supra, at 769.
[25] Buhari v. INEC & Others, note 23 supra, at 462.
[26] B.M. Ltd v. Woermann-Line (2004) 4 NWLR (Pt.863) 1.
[27] National Union of Electricity Employees v. Bureau of Public Enterprises (2010) 7 NWLR (Pt.1194) 558.
[28] Sifax, note 1 supra, at 181-182.
[29] Petrojessica Enterprises Ltd & Another v. Leventis Technical Company Ltd (2002) 8 NWLR (Pt.771) 1.
[30] Okoye v N.C.F & Co Ltd (1973) 1 All NLR 169.
[31] Andrew McGee, Limitation Periods, 8th ed. (Sweet & Maxwell, 2018).
[32] See trial court judgment as reproduced in Sifax, note 1 supra, at 175-176.
[33] McGee, note 31 supra, at p. 21.
[34] (1876) 3 Ch. 101.
[35] [1990] 1 Lloyd’s Rep. 569.
[36] Ibid.
[37] (1966) 1 All NLR 65.
[38] Sifax, note 1 supra, at 179-180.
[39] Adegoke Motors Ltd v Adesanya & Others (1989) 3 NWLR (Pt.109) 250.
[40] See concurring judgment of Ikyegh JCA as reproduced in Sifax, note 1 supra.
[41] Concurring judgment of Mary Peter-Odili JSC in Sifax, note 1 supra.
[42] Fasakin Foods Nig. Ltd v. Shosanya (2006) 10 NWLR (Pt.987) 126. 2 (2006) 4 S.C (Pt II) 204. 3 (2006) 4 S.C (Pt II) 204.
[43] Ibid., at 583.
[44] Aluminum Manufacturing Co. (Nig) Ltd v NPA(2008) 3 NWLR (Pt.1074) 260.
[45] A-G BENDEL STATE vs. A-G FEDERATION & ORS. (1981) LPELR-605 SC;
[46] Olowu v. Abalore, note 22 supra.
[47] Section 14, Limitation Act 1963 (India).
[48] Fasakin Foods, note 42 supra.
[49] B.M. Ltd v. Woermann-Line, note 26 supra.
[50] See Abubakri Yekini and Kareem Olatoye, “Sifax v Migfo and Limitation Laws in Nigeria: Triumph of Pragmatism over Formalism?” (2020) 28(4) African Journal of International and Comparative Law 577.
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