Limitation Period For The Enforcement Of Arbitration Awards In Nigeria- City Engineering Nig. Limited vs. Federal Housing Authority

Introduction

The time from which the limitation period for the commencement of an action for the enforcement of arbitral awards in Nigeria begins to run has been the subject of considerable concern to both practitioners and academics in Nigeria [ref]See Adebayo Adaralegbe, “Limitation Period for the Enforcement of Arbitral Awards in Nigeria” Arbitration International, Journal of the London Court of International Arbitration, 2006, Vol. 22 Number 4.[/ref] and indeed England[ref]See Russell on Arbitration (20th Edition) pages 5-6 and Mustill and Boyd, Commercial Arbitration, Second Edition, page 418[/ref]. This is even more so, when the legal position in Nigeria appears to differ significantly from that in England.


By virtue of section 8(1) (d) of the Limitation Law of Lagos State [ref]This provision was the subject of interpretation in City Engineering Nig. Limited vs. Federal Housing Authority and is in pari materia with the Limitation Laws of other states in Nigeria as well as the Federal Capital Territory of Abuja. [/ref], an action to enforce an arbitration award where the arbitration agreement is not under seal or where the arbitration is under any other enactment other than the Arbitration and Conciliation Act shall not be brought after the expiration of 6 (six) years from the date on which the cause of action accrued. The question then is: when does the time begin to run for the purpose of reckoning the 6 (six) year period of limitation? This was the thrust of the decision of the Supreme Court in City Engineering Nig. Limited vs. Federal Housing Authority. [ref] (1997) 9 NWLR (Part 520), 224 [/ref]


Facts

The parties entered into an agreement to build housing units at Festac Town, Badagry Road, Lagos. The agreement contained a provision to submit all matters in dispute in connection with the execution of the contract to arbitration. A dispute arose in the course of the execution of the contract which resulted in the contract being terminated on December 12, 1980. The matter was referred to arbitration and proceedings commenced on December 11, 1981 and ended in November 1985 when the Arbitrator made his award in the sum of N3, 772, 118.75 in favour of City Engineering.

The City Engineering sought to enforce the award in the High Court sometime in 1988 and the trial judge held that by virtue of section 6 of the Limitation Law of Lagos state, the action for enforcement had become statute barred, having been brought in excess of 6 (six) years after December 12, 1980 when the cause of action arose. Dissatisfied with the judgements of the High Court and Court of Appeal, City Engineering appealed all the way to the Supreme Court.


Arguments

The Supreme Court was referred to its decision in Murmansk State Steamship Line vs. Kano Oil Millers Limited [ref](1974) 5 SC 115[/ref]where the court, held that the time begins to run from the date of the accrual of the original cause of action in the arbitral agreement, and not from the date of the arbitral award. It was contended that this case was in conflict with Obi Obembe vs. Wemabod Estates Limited [ref]6 (1997) 5 SC 115[/ref] and Kano State Urban Development Board vs. Fanz Construction Co. Limited,  [ref]7 (1990) 4 NWLR (Part 142) 1[/ref] two Supreme Court decisions rendered subsequent to the Murmansk case. The court was further urged to consider the position in England as demonstrated in Agromet Motoimport Ltd vs. Maulden Engineering Co. (Beds) Ltd.,[ref][1985] 2 All ER 436[/ref] where Otton J. held that time begins to run from the date of the breach of the implied term to perform the award, and not from the date of the accrual of the original cause of action giving rise to the submission.


The Decision

The Supreme Court, per Ogundare JSC, after a review of the case law and texts, held that the Murmansk case was correctly decided and was thus binding on the lower courts. It further held that no cause had been shown to convince the court to depart from the said decision. The court was also apparently not persuaded by the “breach of implied term to perform the award theory” used by Otton J. in the Agromet case.

Furthermore, the court decided that Obi Obembe case and Fanz Construction case did not conflict with the Murmansk case as neither case touched on the issue of limitation period and thus were irrelevant to the instant case. The Supreme Court also rejected the attempt by counsel to find support in the dicta of Agbaje JSC, in the Fanz Construction case where the learned Justice of the Supreme Court cited the following commentary from Halsbury’s Laws of England:[ref]4th Edition Paragraph 611, Page 323[/ref]
… [an] award thus extinguishes any right of action in respect of the former matters in difference but gives rise to a new cause of action based on the agreement between the parties to perform the award which is implied in every arbitration agreement.
The Supreme Court took the view that this reference by Agbaje JSC in the Fanz Construction case was irrelevant to the limitation period under consideration as it did not deal with it.

Comments

The position of Nigerian law on the limitation period for the enforcement of arbitration awards appears to have been first settled by the Supreme Court as far back as the case of Murmansk State Steamship Line vs. Kano Oil Millers Limited. At the time this decision was rendered, the preponderance of authority even in England seemed to support this position. Hence, the learned authors of Russell on Arbitration[ref]18th Edition of the book took the view at pages 4-5 that[/ref] stated as follows:
Date from which time runs: The period of limitation runs from the date on which the ‘cause of arbitration accrued; that is to say, from the date when the claimant first acquired either a right of action or a right to require that an arbitration take place upon the dispute concerned.
This passage was referred to with approval by the Supreme Court in its judgment in the Murmansk case.

However, the position of the courts in England has since changed and is now as shown in the Agromet case. The court held that it is an implied term of an agreement to submit disputes to arbitration, that any award made upon the submission will be honoured. The “action” and “cause of action” referred to in section 7 of the English Limitation Act of 1980, [ref]This section is in pari materia with section 8 of the Limitation Laws of Lagos State. [/ref] are therefore the independent cause of action for breach of the implied term to perform the award and not the original cause of action.

The learned authors of Russell on Arbitration have in their 22nd Edition restated the law in line with the Agromet case as follows:[ref]See Russell on Arbitration, 22nd Edition, Page 367, Paragraph 8 – 008[/ref]

The limitation period for an action on the award will usually be six years….Time runs from the date of the breach of the arbitration agreement, not from the date of the arbitration agreement or the date of the award.

In the more recent case of IBSSL vs. Minerals Trading Corp,[ref]1996 1 All ER[/ref] the English court agreed with the conclusion reached by Otton J in Agromet case and held that time begins to runs from the date on which the implied promise to perform the award is broken, not from the date of the arbitration agreement nor from the date of the award.[ref]See also Good Challenger Navegante S.A. v. Metal HExport/Import S.A., [2003] EWCA (Civ) 1668.[/ref]

Although reported over ten years ago, the Supreme Court decision in the City Engineering case represents the current position of the law in Nigeria. Its implication is that the arbitration proceedings and the enforcement of the award both constitute a single cause of action that must be prosecuted and enforced within the statutory limitation period.

There is however no doubt that the view expressed in the dicta of Agbaje JSC in the Fanz Construction case, to the effect that an award by an arbitrator constitutes a separate cause of action based on the agreement to honour the same, accords with the current international judicial opinion. Accordingly, the phrase “cause of action” in section 8(1) (d) of the Limitation Law of Lagos State supra refers to the action to enforce the arbitration award, the cause of which can only accrue where the party against whom the award was made has defaulted in honouring the same.

With due respect, the interpretation given by the Supreme Court in the City Engineering case portends palpable difficulties not only for the contracting parties, but also for future of arbitration. For instance, it is not unlikely that the limitation period could have expired before the award is actually rendered. Really, what is the use of an arbitral award if the party seeking to enforce such an award is unable to benefit from the fruits of his victory?

Conclusion

It is hoped that the Supreme Court will sooner than later have cause to reconsider its position in City Engineering case to the effect that the action to enforce the arbitral award will be construed as a separate and distinct cause of action from that founded on the dispute between parties to an agreement providing for referral to arbitration. Furthermore, Nigerian law should be brought up to speed with current international judicial thinking (especially in England) exemplified by Agromet and IBSSL cases. Failure to do so would only draw us back in the bid to make arbitration a viable alternative to the adjudication of matters outside the court room.

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