On when time will stop running against a claimant under limitation law: An insight into the Court of Appeal laudable decision in
MESSRS U. MADUKA ENTERPRISES (NIG.) LTD
V.
1. BUREAU OF PUBLIC ENTERPRISE
2. OTUNBA OLUTOLA SUNBORE (THE LIQUIDATOR)
3. NATCOM CONSORTIUM DEVELOPMENT AND INV. LTD.
(TRADING AS NTEL)
(substituted on the 4th of July, 2017) CITATION: [2019]12 NWLR PT.1687 AT 429 Courtesy: Moruff O. Balogun Esq.

Summary of Facts:
The appellant entered into a contractual agreement with the Federal Ministry of Communication in August 1978 for the purpose of building among other things, P &T Training School at Agbani, Enugu for a consideration of N6, 077,871.39 (Six Million, Seventy Seven Thousand, Eight Hundred and Seventy One Naira, Thirty Nine Kobo).
The Nigerian Telecommunication Plc after its establishment in 1985 later became a beneficiary of the contract between the appellant and the Federal Ministry of Communication based on an addendum to the primary contract executed in December, 1988.
Due to fluctuations and depreciation in value of the naira, dispute arose between parties with regards to payment and parties were unable to settle as a result of which the appellant invoked the arbitration clause in the Agreement for an arbitral award.

At the conclusion of the arbitration proceedings, the appellant was on 6th February 2006 awarded an arbitral sum of N60, 981,226.60, (Sixty Million, Nine Hundred and Eighty One Thousand, Two Hundred and

Twenty Six Naira, and Sixty Kobo).
The appellant thereafter on 18th April 2011 filed an application at the trial court for the enforcement of the award and the respondent filed a counter-affidavit in opposition stating that the award was statute barred.
At the conclusion of hearing, the trial judge ruled in favor of NITEL Plc which had become a party to the contract as well as a beneficiary of same and dismissed the appellant’s application on ground of being statute barred.

NITEL Plc was later wound-up upon a winding up petition by Order dated 14thMarch 2014 and Otunba Olutola Senbore was appointed as the Liquidator of NITEL Plc still under liquidation.
Dissatisfied with the ruling of the trial court, the appellant appealed to the Court of Appeal.
The 1st and 2nd respondents in response to the appeal filed a preliminary objection on the ground that the subject matter of the appeal is a contract between the appellant and NITEL Plc to which all the respondents were not parties to the contractual agreement.
They therefore contended that proper parties were not before the court and as such the court lacked the jurisdiction to entertain the matter.

Held : Unanimously allowing the appeal

The following issues were raised and determined:

On When time will stop running against a claimant under limitation law:
Where a statute of limitation prescribes a time frame within which a claimant must file an action in respect of his grievances, time will stop running against the claimant from the moment an action is commenced. The time limitation as in statute of limitation is as to time of commencement not conclusion. For the purpose of limitation in the instant case, the time between the commencement of the arbitration and the date of the award are not reckoned, and thus, time freezes while the proceedings are pending. In view of Section 35(5) of the Lagos state Arbitration Law, the period of time between when the arbitration clause in the agreement between the parties’ was invoked by the appellant in year 2000 (i.e. when the cause of action accrued) and when the arbitral award was made in 2006, freezes or stops running. Therefore if the six-year period of limitation as regards simple contracts will apply, the appellant would still be within time to have put in an application in 2011 for the enforcement of the arbitral award which was made in 2006 as the period of time within the year 2000 and 2006 will not count. It follows therefore, that the application for the enforcement of arbitral award made in 2006 was not statute barred as it was still within the limitation period of six years. The appellant never slept on its rights and is entitled to the fruit of its award.

On Purport of limitation time or statute bar:
Time limitation, statute bar has to do with a party sleeping on his right and failing to take positive steps to initiate proceedings for redress.

On Effect of non joinder of necessary party:
Though no cause or matter shall be defeated by reason of the mis-joinder or non-joinder of any party, yet in the absence of a proper party or necessary party before a court, it appears an exercise in futility for a court to make an order or decision which will affect a stranger to the suit who was never heard or given an opportunity to defend himself. This will certainly be against the tenets and tenor of section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). A plaintiff is not bound to sue a particular party.
However, where the outcome of the suit will affect that party one way or the other, it will be foolhardy not to join him in the suit. In fact, it would amount to an exercise in futility as the said party will not be bound by the outcome of the case. This goes to how that a party who would be affected by a judgment or decision of a court needs to be made a party.

In this case, it is therefore not a misplacement that the 2nd respondent (the liquidator) and other respondents were made parties to the suit as they would be affected one way or the other by the decision of the court. The respondents were therefore proper parties before the court as they would be bound by the decision of the court and they have the power to bring or defend any action or other legal proceeding in the name and on behalf of the company (the substituted party).

On When substitution of a party to a suit can be made :
The substitution of parties in a suit is not alien to the law and it can be said to take place or can be granted by the court even at the appellate stage. The law may permit a person to substitute another in a law suit (including appeal) where there is a genuine case of death, bankruptcy, assignment, transmission or devolution of interest or liability of a party to the suit or appeal, where the need to substitute is obvious in fact and in law.

Courtesy:
Moruff O. Balogun Esq.
IJEBU ODE, OGUN STATE.
08052871414.