By J.A. Agbo Esq. Llb(Hons) Bl

It was Olliver Wendell Holmes that said the law is what the judges say it is; this idea later crystallized into what became the Realist jurisprudence of law.

For all the criticisms against this school, there is no denying that once a law or body of law is codified into a document, what the law means in practical terms is determined by the interpretation or meaning that the judge ascribes to the specific provision at the end of the day.  The above underscores the conspicuous and essential role played by judges in giving life to and in ensuring certainty and concretizing the body of laws for a nation.

It is undisputable that the hopes of a nation be it economic, social or otherwise depends on having a robust legal system that protects the rights and liberties of individuals, businesses and agencies. There is no gain saying that the Judiciary in Nigeria has lived up to its billing in ensuring that that jurisprudence keeps evolving to meet the needs of the 21st century. It cannot be said however that the persons who make up the judiciary and interpret laws are not without faults for as aptly captured by the learned Justice Oputa (of blessed memory) who said “we are not final because we are infallible but we are infallible because we are final” this dictum is well worn and illustrates the admission that as humans, judges can and do make mistakes. SIFAX NIG. LTD v MIGFO NIG LTD[1] made what appeared to be a locus classicus on the application of status of limitation to pending cases. The decision of the Apex court was greeted with jubilation by a cross section of lawyers and legal commentators who saw it and still see it as a victory for substantial justice over technicality. While the intention of the court in saving deserving cases from dying premature deaths and receiving disgraceful burials is to be applauded, this writer is of the opinion that the decision itself might have unwittingly sounded the death knell for another important principle of law which is that where in commencing an action, the writ is incompetent and the defect is such that cannot be regularized, the defect being fundamental, the action is deemed not to have been commenced at all for the reason of the incurable defect.

This article seeks therefore to examine the decision of the court and the applicability of same to defective writs that are incurably bad.

FACTS OF THE CASE

The 1st Appellant and the Respondents put up a Memorandum of Understanding (MOU dated 27-7-05 to jointly bid for the concessioning and subsequent joint management of Terminal ‘C’ Tin Can Island Port, Apapa, Lagos, which was then being concessioned by the Federal Government of Nigeria through the Bureau for Public Enterprises (BPE) and the Nigerian Ports Authority (NPA). The bid document was subsequently submitted to the BPE by the 1st Appellant on behalf of the others after their joint effort and input in preparing same. It was also part of the MOU that, should the bid be successful, a joint venture company will be incorporated by the joint venture partners to manage the operations of the Port. They eventually emerged the preferred bidders and while waiting for the 1st and 4th Appellants to summon the Respondents for a meeting to map out the way forward including the incorporation of the Joint Ventures Company, the 1st, 3rd and 4th Appellants secretly promoted and incorporated the 5th Appellant (Port and Cargo Handling Services Company Limited) to the exclusion of the Respondents and without their knowledge, upon being aware of the development and that the Port had been handed over to the 5th Appellant by the BPE/NPA, the Respondents immediately conducted a search at the Corporate Affairs Commission, Abuja and on 20-7-2006 obtained certified true copies of the incorporation documents which revealed that only the 1st and 3rd Appellants were stated as shareholders and directors to the exclusion of the Respondents contrary to the terms of the MOU. After efforts to meet with the Appellants with a view to resolving the issue failed, the respondents filed suit No. FHC/L/CS/664/2006 at the Federal High Court, Lagos. Judgment was eventually given in their favour and this was affirmed by the Court of Appeal. But on further appeal to the Supreme Court the suit was struck out on the ground that the Federal High Court lacks the jurisdiction to entertain the action instituted by the Respondents. The said judgment was delivered on 8-6-12. The Respondents thereafter commenced this action afresh at the High Court of Lagos State on the 18-7-2012. The Appellants as the defendants in the High Court of Lagos State reacted by filling a motion on notice wherein they prayed that the suit be struck out for being statute barred. In a ruling delivered on 5-7-2013, the High Court of Lagos State held that the action is not statute barred because it was not caught by Section 8 of the Limitation Law of Lagos State. The decision of the trial court was upheld by the Appellate court and still dissatisfied, the appellants appealed to the Supreme Court. In dismissing the appeal, the apex court Per. Augie JSC held thus: “However given the recondite nature of the law relating to whether time ceases to run upon the filing of an action by a party, which Suit is subsequently struck out for the purpose of the Limitation Law. I am inclined to address the issue herein. The stance of the Appellants as earlier referred to is that consideration of what may or may not have transpired during the intervening period is irrelevant in determining whether or not an action is statute barred and that when a period of limitation begins to run in respect of a cause of action, such period cannot be broken. The cases of KOLAWOLE INDUSTRIES CO LTD Vs A.G FEDERATION Supra; EBOIGBE Vs NNPC supra; CITY ENGINEERING LTD VS F.H.A Supra where relied on. Incidentally none of the cited authorities had similar circumstances as the instant case. They did not address the issue whether the filing of an action keeps the running of time in abeyance for the purpose of the Limitation Law. The view of the learned Author Andrew MC Gee expressed in his Book under reference seem however to have support with the Supreme Court case of ALHAJI HARUNA KASSIM (Trading as cash stores) vs HERMAN EBERT(1966-69) NNLR 75. The major point argued in the case both at the Lower Court and Supreme Court was that when the Suit which was struck out was relisted on 13-12-1953, the claims had become statute barred since the cause of action arose in March and May 1967 respectively. It was therefore contended that the order of liberty to relist made on 13-12-1963 must be interpreted to mean liberty to relist within the time allowed by law. So the action having becoming statute barred, the judge had no power to make the order to relist because the action was already dead and could not be revived. The Supreme Court per Ademola CJN while noting (as in this case) that the appeal “raises a novel point which has not hitherto come up for decision in our Courts” relied on the English case of RE CLAGETTS’s ESTATE, FORDHAM VS CLAGETT (1882) 20 CH.D. 637 at 653 where it was held that:- “A cause is said to be pending in a Court of Justice when any proceeding can be taken in it. That is the test. If you can take any proceeding it is pending.” To hold that the Plaintiff’s claim though earlier struck out but subsequently relisted was not statute barred. In the instant case, the Respondents were not indolent or slept on their right, but exercised such right by filing Suit No FHS/L/CS/664/06 at the Federal High Court on 9-8-2006 upon discovery on 20-7-2006 that the Appellants have incorporated the 5th Appellant to manage terminal C of the Port to their exclusion. The Suit ended in favour of the Respondents both at the Federal High Court and the Court of Appeal after it was determined on the merits but at the Supreme Court the Suit was struck for want of jurisdiction by the Federal High Court to entertain the Suit in the first instance without the Apex Court delving into the merit of the case. I must pause here to register my full agreement with the submission of the learned senior counsel for the Respondents that if the Apex Court had adverted its mind to Section 22 of the Federal High Court Act and its decision in ALUMINIUM MANUFACTURING CO. LTD VS NPA (1987) 11 NWLR (PT 51) 475 at 497 it would have ordinarily invoked Section 22 of the Supreme Court Act to make an Order of the transfer of the Suit from the Federal High Court to the appropriate State High Court instead of an order of striking out for want of jurisdiction given that the Suit had been concluded on the merit at the two Courts below. See also MOKELU VS. FEDERAL COMMISSIONER FOR WORKS AND HOUSING (1976) 1 NMLR 329. The said Section 22 of the Federal High Court Act as Amended in 2005 provides that:- “22(2) No cause or matter shall be struck out by the Court on the ground that such cause or matter was taken in the Court instead of the High Court of a State or of the Federal Capital Territory, Abuja, in which it ought to have been brought, and the Judge of the Court before when such cause or matter to be transferred to the appropriate High Court of a State or of the Federal Capital Territory, Abuja in accordance with the Rules of Court so made under Section 44 of this Act.” This Court in a number of cases have in similar situations invoked Section 15 of the Court of Appeal Act 2011 which is akin to Section 22 of the Supreme Court Act to make orders of transfer from the Federal High Court to the State High Court. See NYIENAKUNA V UNIVERSITY OF UYO (2014) LPELR (22651) CA; BELIEVERS FISHERIES DREDGING & ANOR VS UTB TRUSTEES LTD (2010) LPELR (3864) CA; DUMEZ (NIG) PLC VS UBA PLC (2006) 14 NWLR (PT.1000) 55 and SOCIETE INTERNATIONALE DE TELECOMMUNICATION AERONAUTIQUES (SITA) vs MAEVIS LTD. APPEAL NO.CA/L/534/2013 delivered on 10-12-2014. Nonetheless, I am of the humble view that the postulation of the learned author relied on by the learned trial judge to the effect that time ceases to run when the Plaintiff commences legal proceedings in respect of a cause of the action in question is quite persuasive on this recondite area of law and it accords with justice and common sense. Where an aggrieved person commences an action within the period prescribed by the statute and such action is subsequently struck out for one reason or the other without being heard on the merit or subjected to an outright dismissal, such action is still open to be recommenced at the instance of the Claimant and the limitation period shall not count during the pendency of the earlier suit. In other words, computation of time during the pendency of an action shall remain frozen from the filing of the action until it is determined or abates. Thus in the instant case time ceases to run from the filing of suit No.FHC/L/CS/664/2006 on 9-8-2006 until the 8-6-12 when it was struck out by the Supreme Court. My conclusion therefore is that the instant case is not caught by the statute of limitation. In this regard it becomes an unnecessary academic exercise to engage in the discuss whether the action is exempted from the application of Section 8(1)(a) of the Limitation Act by virtue of Sections 13 and 58 thereof.” 

The decision above can be summarized as follows “where an aggrieved party institutes an action within the time prescribed by law and such action is not heard on its merit or dismissed, statute of limitation which will otherwise have had an effect on the case had it been instituted outside the time allowed by law for the institution of such case is suspended in operation such that even if the action is struck out for want of jurisdiction or any other valid reason, the affected party will be at liberty to begin the action afresh.

It doesn’t take much to understand the raison de’tre behind the decision of the learned justices of the Apex Court. The time has come when practitioners should live up to their calling and allow courts decide matters on their merits rather than hide behind technicality to defeat the end of justice. The above notwithstanding, the decision throws up a couple of questions such as, where an action is filed within the time allowed by law for a party to do so but is done in breach of an important requirement also imposed by law which thereby robs the court of the requisite vires to entertain same, will the decision apply to suspend the operation if limitation statutes where it applies to the case?. I do not think so and my  view is strengthened by a holding of the court in the case under review. The court held thus: “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, (underlining mine) 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”. It is instructive to note that the learned justices, in reaching the above conclusion had admitted at least by implied inference that an action that is dismissed for want of jurisdiction cannot be re instituted. An example in this regard will suffice. Jon is engaged through a contract of service to construct over head tanks for Madeline Hospital Ltd. By the contract of service, he will receive a specified sum as payment for work done if he completes his assignment within 3 months of being engaged.  Jon completes the assignment within three months and it is satisfactory. Rather than pay him the agreed sum, Madeline Hospital begins to make excuses. Jon contacts the firm of Ocean Island & Co, a firm of legal practitioners to pursue his claims in court, the Writ of Summons is signed in the name of Ocean Island & Co. the counsel to Madeline hospital notices the defect at the close of trial which had taken 7 years. He raises the objection and relying on the authority of OKAFOR AND ORS V NWEKE AND ORS[2] and other authorities on the point, the trial court dismisses the suit. The inference to be drawn from the highlighted portion of the decision of the court in SIFAX CASE (supra) is that the fact that the case was instituted within time notwithstanding, the statute of limitation will not be suspended in the above example. This conclusion is not farfetched. The defect in the example given above is such that cannot be corrected for the writ is not amenable to amendment and as such the only option left for the court is to dismiss same.

It is also considered given that were a Writ of Summons through which an action is instituted is fundamentally defective, the court does not only lack the requisite vires to entertain the action, the suit itself is deemed not to have been commenced ab initio. This view is supported by a couple of decisions of the same court that decided SIFAX CASE. In MOUDKAS NIG ENT LTD AND ORS V OBIOMA AND ORS[3] the appellate court held on the effect of an incompetent originating process as follows: “Of the statement of claim I am clear in my modest opinion that it was not signed by a recognised or known registered legal practitioner or the claimants. It is on that score incurable defective. The defect cannot be cured by an amendment. The amended statement of claim does not therefore cure the mortal defect in the statement of claim. See Ministry of Works and Transport, Adamawa State and Ors. v. Yakubu and Anor. (2013) 6 NWLR (pt.1351) 481 at 495 – 496 as follows- ”My Lord, in the instant appeal, it is not in dispute that the originating process was neither signed by a party to the case nor a legal practitioner but by “J. R. Ndawalam and Co.” a non- cognizance person whose name is not on the roll of this Court. It must be stretched that there is a world of difference between a legal practitioner and his chambers. While a legal practitioner is lawyer whose name is on the calI roIl, his law chambers is not, hence it cannot perform the duty of a legal practitioner and perhaps cannot be addressed as learned counselor learned Senior Advocate of Nigeria, SAN as the case may be. ……………………………. Applying these principles to the case at hand, I have no doubt in my mind that the originating process having not being properly initiated, the action is incompetent and any appeal arising from such an incompetent process is also incompetent. See: also Okafor v. Nweke (2007) All FWLR (Pt. 360) 10.16 at 1025-1027, (2007) 10 NWLR (Pt. 1043) 521; The Registered Trustee of Apostolic Church Lagos Area v. Akindele (1967) NMLR 263 at 265, (1967) SCNLR 205. My Lords, I would have ended this judgment here, but for the submission of the respondent counsel that the said originating process was amended and as such it does not form basis upon which the case was tried and determined. The questions that easily come to mind are that can an incompetent originating process or processes be amended, or can the incompetence of the process be cured by the amendment? No doubt, the learned counsel of the respondents pretends not to appreciate the fundamental nature of an originating process. The fatal effect of the signing of an originating process by a law firm is that the entire suit was incompetent ab initio. It was dead at the point of filing. This highlights the painful realities that confronts a litigant when counsel fails to sign processes as stipulated by law. The originating process, as in this case, is fundamentally defective and incompetent. It is inchoate, legally non-existent and can therefore not be cured by way of an amendment” (underlining mine). See also Okarika v. Samuel (2013) 7 NWLR (pt.1352) 19, Nigerian Army v. Samuel (2013) 14 NWLR (pt. 1375) 466, Alawiye v. Ogunsanya (2013) 5 NWLR (pt. 1348) 570

The Appellate Court, in reaching the decision in the case above was guided by the decisions of the Apex Court on the point one of which is OKARIKA AND ORS V SAMUEL AND ORS[4].

It is taken as given that there is a consensus among practitioners and even academics that a process not signed by a legal practitioner cannot commence an action validly. The dictum of IKEYGH JCA in MOUDKAS CASE (supra) that “the fatal effect of signing an originating process by a law firm is that the entire suti is incompetent ab initio, it was dead on arrival at the point of filing … it is inchoate, legally nonexistent… can only mean that a process that is incompetent at the point of filing is deemed not to exist in law at all. This explains why objections based on signing a process in the name of a firm almost always leads to a dismissal of the entire suit.

It is my view that such a suit, once struck out cannot be relisted. The only option open to a prospective litigant will be to file a fresh suit. The point of interest then is: if the law is that an incompetent originating process is dead on arrival, can it be said that an action has been commenced at all for the purpose of suspending the operation of statutes of limitation where it applies? I do not think that the decision in SIFAX CASE can be stretched to have this meaning for in deciding the case, the court itself had imposed conditions that can activate the operation of the principle in the case namely: that the case sought to be initiated again was not heard on merit in the first instance, it had not been dismissed and it is an action that can be relisted. With respect to the last condition, the court Per AUGIE JSC said… “The view of the learned Author Andrew MC Gee expressed in his Book under reference seem however to have support with the Supreme Court case of ALHAJI HARUNA KASSIM (Trading as cash stores) vs HERMAN EBERT(1966-69) NNLR 75. The major point argued in the case both at the Lower Court and Supreme Court was that when the Suit which was struck out was relisted on 13-12-1953, the claims had become statute barred since the cause of action arose in March and May 1967 respectively. It was therefore contended that the order of liberty to relist made on 13-12-1963 must be interpreted to mean liberty to relist within the time allowed by law. So the action having becoming statute barred, the judge had no power to make the order to relist because the action was already dead and could not be revived. The Supreme Court per Ademola CJN while noting (as in this case) that the appeal “raises a novel point which has not hitherto come up for decision in our Courts” relied on the English case of RE CLAGETTS’s ESTATE, FORDHAM VS CLAGETT (1882) 20 CH.D. 637 at 653 where it was held that:- “A cause is said to be pending in a Court of Justice when any proceeding can be taken in it. That is the test. If you can take any proceeding it is pending.”

The court went on to hold that the Supreme Court ought not to have struck out the case in the first place because the Federal high court had the power to transfer the case to the high court of Lagos state. Continuing the court held:

“In the instant case, the Respondents were not indolent or slept on their right, but exercised such right by filing Suit No FHS/L/CS/664/06 at the Federal High Court on 9-8-2006 upon discovery on 20-7-2006 that the Appellants have incorporated the 5th Appellant to manage terminal C of the Port to their exclusion. The Suit ended in favour of the Respondents both at the Federal High Court and the Court of Appeal after it was determined on the merits but at the Supreme Court the Suit was struck for want of jurisdiction by the Federal High Court to entertain the Suit in the first instance without the Apex Court delving into the merit of the case. I must pause here to register my full agreement with the submission of the learned senior counsel for the Respondents that if the Apex Court had adverted its mind to Section 22 of the Federal High Court Act and its decision in ALUMINIUM MANUFACTURING CO. LTD VS NPA (1987) 11 NWLR (PT 51) 475 at 497 it would have ordinarily invoked Section 22 of the Supreme Court Act to make an Order of the transfer of the Suit from the Federal High Court to the appropriate State High Court instead of an order of striking out for want of jurisdiction given that the Suit had been concluded on the merit at the two Courts below. See also MOKELU VS. FEDERAL COMMISSIONER FOR WORKS AND HOUSING (1976) 1 NMLR 329. The said Section 22 of the Federal High Court Act as Amended in 2005 provides that:- “22(2) No cause or matter shall be struck out by the Court on the ground that such cause or matter was taken in the Court instead of the High Court of a State or of the Federal Capital Territory, Abuja, in which it ought to have been brought, and the Judge of the Court before when such cause or matter to be transferred to the appropriate High Court of a State or of the Federal Capital Territory, Abuja in accordance with the Rules of Court so made under Section 44 of this Act.” This Court in a number of cases have in similar situations invoked Section 15 of the Court of Appeal Act 2011 which is akin to Section 22 of the Supreme Court Act to make orders of transfer from the Federal High Court to the State High Court…”

The decision above leaves no one in doubt that the suit under reference was competently commenced but in the wrong court. The defect was not fundamental as it had already been taken care of by law- the power to transfer under the Federal High Court act and the Supreme Court Act. I suppose that the position of their lordships at the Apex Court will be different had the suit been incompetent and fundamentally incurable. It is therefore safe to conclude that the principle laid down in this case will apply only to cases where the defects are such that can be corrected by an amendment. To think otherwise will foist two unwanted situations on both lawyers and litigants ; the first being that the decision of the apex court will amount to an override of the time honored principle of law that an incompetent originating process is deemed not to exist and therefore cannot ground an action worthy of adjudication before any court, the extended implication of which is that such incompetent processes do not and cannot give life to an action commenced thereby and as such do not have the capacity to suspend or put in abeyance, the operation of limitation statutes where it applies to a given case.  In UAC V MCFOY[5], lord Denning thus  “if an act is void, then it is in law a nullity… it is automatically void and without much ado, though it is sometimes more convenient to have the court declare it to be so and every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stand”.

Still on the useless nature of an incompetent originating process the court in BABATOPE V SADIKU AND ORS[6] held thus:  “The law is well settled and no amount of legal sophistry can change it unless and until it is changed by the Apex Court that an originating process, such as a Writ of Summons or Originating Summons or Petition or Motion on Notice, is the foundational structure on which the super structure of the reliefs or claims of the Claimant or Applicant depend for its competence and validity in law, though not necessarily for its merit or otherwise. In other words, while the success or failure of the claims or reliefs of a party may not necessarily be a function of the Originating process, the validity or competence of the entire claims of the party must necessarily be based on the competence or otherwise of the originating process. See Pure Chem. Ind. Ltd. v Spica Shipping Co. Ltd. (2012) 3 NWLR (pt. 1287) 348, where the above trite position of the law was explained inter alia thus: “The issuance of a writ which commences a suit precedes service, any error or mistake in the process of commencement therefore, is fatal …A writ issued when the condition precedent to its being issued was not complied with is a defective writ and ought to be struck out in whole and not in part. In other words, it stands and falls as a whole.” In law, therefore where the originating process is found or turns out to be fundamentally incompetent, it would automatically render the entire proceedings and resultant judgment or decision of the Court nullity. This is so because, the incompetence of the originating process robs the Court itself of its jurisdiction to hear and determine such matter on the merit. It is of crucial importance, and ought to be borne in mind at all times, particularly by trial Courts, that no matter how meritorious a party’s case may appear on the face of the pleadings of facts and the evidence led thereon, once the originating process, which is the very life source of the claim is fundamentally defective and thus incompetent, and I am here not referring to mere defects that are at worst mere irregularities which can be cured with the leave of Court, there is nothing else the Court can do than to bring to an end, in limine, such an incompetent action either by raising it suo motu and calling on the parties to address it or if moved to that effect by the other party. (Underlining mine) See Madukolu v. Nkemdilim (1962) 1 ALL NLR 587@ p. 594. See also Ebhodaghe v. Okoye (2004) 18 NWLR (Pt. 905) 472; APGA V. Senator Anyanwu & Ors (2014) LPELR – 22182 (SC); SLB Consortium Ltd. v. NNPC (2011) 9 NWLR (pt. 1252) 317; Okafor v. Nweke (2007) 3 SC (Pt. II) 55 @pp. 62 – 63; Skenconsult (Nig.) Ltd. v. Ukey (1981) 1 SC 6 @ p. 62; Inakoju V. Adeleke (2007) 4 NWLR (Pt.1025) 427 @ p. 588; Petro Jessica Enterprises Ltd. v. Leventis Technical Co. Ltd. (1992) 5 NWLR (pt.244) 675; Isaac Obiuweubi v. Central BanK of Nigeria (CBN) (2011) 7 NWLR (pt. 6 1247) 465 @ p. 494; Bronik Motors Ltd & Anor v. Wema Bank Ltd. (1983) 1 SCNLR p. 296; Okoya V. Santilli (1990) 2 NWLR (pt. 131) p. 172. It is also settled law that an incompetent originating process cannot by any ingenuity of counsel be allowed to be amended to render it subsequently competent. This is why the issues of acquiescence and of timing do not matter or arise when the issue being canvassed is the incompetence of an originating process itself, being a threshold issue of jurisdiction, without which there can be no validity in law. In other words, once the issue has to do with the fundamental competence of a suit or the jurisdiction of the Court, it can be raised at any stage of the proceedings and thus can never ever be late or too early to be raised…”

Being what it is, a nullity is beyond remedy and as such, an action founded on a nullity cannot be amended or re initiated.  The second unwanted situation is that practitioners will assume a lazy and lack luster posture towards the prosecution of clients’ briefs. The job of practitioners is an onerous one that demands the highest level of professionalism and competence. It is so sacrosanct that it is codified as part of the rules of professional ethics for lawyers. This standard has been demanded in motley cases that it has become prolix. On the need to exhibit the highest standard of professionalism in handling clients’ cases, NGWUTA JSC in DARIYE V FRN[7] said “Lawyers are engaged to espouse the case of their clients. It is a monopoly and they should bear in mind that like all monopolies, their conduct are subject to strict rules of accountability for adherence to set ethical standards. They can fight the cause of their clients but as lawyers they must act within the rules regarding ethical conduct… the import of the above requires no explanation. Bearing the above in mind, the question that readily begs for answers is: if the decision in SIFAX case were to apply to actions that are fundamentally incompetent ab initio, would lawyers not have an even more relaxed view of the standard of professionalism and competence required of them? It is the point is more succinct given the temptation to always use the case under review as an excuse.  It is my view that undue delays will be occasioned and the ends justice sought in every case may be defeated. Instructively, the fact remains that while the decision above was made in aid of substantial justice; that is in itself a product of adherence to rule of law. Not surprisingly, this point is not lost on the court and has been reiterated in several decisions. For example, in BABATOPE V SADIKU AND ANOR[8] the appellate court per Georgewill JCA said “… as I bring this judgment to a close, I am aware of the trend nowadays to do substantial justice far and above technical justice yet a court of law cannot in good conscience shut its eyes to the fundamental incompetence of a party’s case, particularly in relation to originating processes which turns out to be fundamentally incompetent. It is true that the current trend in judicial thinking is that courts should lean more on doing substantial justice than allowing undue technicality to ride roughshod over the rights and liabilities of the parties from being decided on the merit. Yet, it is also true and it is the law that where a court finds that it does not have jurisdiction and that the proceedings are a nullity, that is where the matter ends and no amount of sentiment or substantial injustice or indeed even overzealousness on the part of the court to do substantial justice can dictate otherwise. The principle of substantial justice must be applied according to the law and not at the whims and caprices of the court… if an act is void, it is a nullity, there is no need for an order of court to set it aside…”

Also in DADA V DOSUNMU the apex court per Tobi JSC of blessed memory (as he then was) said “ …the role of the court is to apply the principle of substantial justice according to law, the principle cannot be applied outside of law or in contradiction of law…”

From the foregoing, it is clear that the decision in SIFAX case could not have been made in breach of the rule of law or the legal principle that an action initiated in clear violation of condition precedent which defect cannot be cured by amendment can benefit from the principle set out in that case. If this opinion is correct, then it is safe to conclude also that the suspension of the application of the statute of limitation to a given case will depend on what the irregularity complained about is. If the defect is such that can be corrected by an amendment, in which case the case can be recommenced after the defect is cured, it will be of no moment that the action was restarted after effluxion of time. To this end, the apex court in sifax case had held thus:

“The appellants argued that a case struck out is dead. But the Supreme Court case of Alhaji Haruna Kassim (Trading as Cash Stores) v. Hermann Ebert (1966) N.N.L.R. 75 at 76 – 77 held inter alia that a suit struck out is still pending and that – “As Lord Jessel, M. R., put it in Re Clagett’s Estate, Fordham v. Clagett (1882) 20 Ch.D. 637 at 653, – A cause is said to be pending in a court of justice when any proceeding can be taken in it. That is the test. If you can take any proceeding it is pending”… “‘Pending’ does not mean that it has not been tried. It may have been tried years ago. In fact in the days of the old Court of Chancery, we were familiar with cases which had been tried fifty or even one hundred years before and which were still pending. Sometimes, no doubt, they require a process which we call reviving, but which the Scotch call waking up; but nevertheless they were pending suits…”. Further, the Apex Court held in the case of Panalpina World Transport (Nig.) Ltd. v. J. B. Oladeen International and Ors. (2010) 19 NWLR (pt.1226) 1 at 20 per the lead judgment of Adekeye, J.S.C., (as he was) that when a matter is struck out it is still alive and kept in the Court’s general cause list and that – “When an order is made in respect of an application not heard on the merits, it amounts to striking out simpliciter. Even where an order of dismissal is made following a hearing which is not based on the merits, such order is still considered in law a mere striking out. When a matter is struck out in such circumstances, there is liberty to relist. The simple explanation is that while the matter is discontinued from that date, it is still alive and kept in the Court’s general cause list and can be brought back to the hearing cause list….. In such a case, the plaintiff still has another opportunity to re-open the action after rectifying the deficiency that resulted in the striking out of the action. This is applicable even where the Court has not included in the order of striking out that the plaintiff has an option to relist. The underlined portion of the judgment of the Apex Court above points to an unmistakable conclusion that is, an action that is struck out by reason of some defects can be relisted on the cause list if the defect is rectified; the implication of which is that where the defect is such that cannot be rectified, even if the order that was made was an order striking out the processes, it will amount to a dismissal and the only option open to such a party will be to start his action afresh. It is my view that in such a situation, given the reasoning earlier advanced in this article, the statute of limitation  was not suspended and continued to run and that being the case, if the time allowed for instituting actions to seek redress by an aggrieved party is caught by the operation of limitation statutes, such an action will be statute barred.

Finally, there is reason to believe that the last has not been heard on the principle set forth in the case under review and it will be interesting to see what the outcome will be if the decision of the Apex Court was challenged on the grounds advanced in this article.

[1] (2018) 9 NWLR PT.1623 138 SC.

[2] (2007) LPELR 2412 SC

[3] (2016) LPELR 40165 CA

[4] (2013)  7 NWLR PT1352 19 SC

[5] (1961) ALL ER 1169, (2000) 15 WRN 185

[6] (2017) LPELR 41966 CA

[7] (2015) LPELR 24398 SC

[8] supra