PEUGEOT AUTOMOBILE (NIG) LTD & ANOR v. LAWAL ABUBAKAR (2013)

PEUGEOT AUTOMOBILE (NIG) LTD & ANOR v. LAWAL ABUBAKAR

(2013)LCN/6002(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 23rd day of March, 2016

CA/K/341/2013

RATIO

SERVICE: THE OBJECT OF SERVICE

It is trite that the object of service is to give notice to the Defendant so that he may be aware of and be able to defend, if he may, that which is sought against him. It is settled law that failure to serve a Defendant is a fundamental vice as service of a Writ of Summons is a condition precedent for the exercise of a Court’s jurisdiction over the subject-matter of the action and over the Defendant. Thus, Non-service is a fundamental defect that affects the jurisdiction of a Court. See MADUKOLU V. NKEMDILIM (1962) 1 ALL NLR 587; SKENCONSULT (NIG) LTD v. UKEY (1981) 1 SC 6; OKAFOR V. IGBO (1991) 8 NWLR (PT.210) 476.PER UWANI MUSA ABBA AJI, J.C.A.

SERVICE: EFFECT OF SERVING AN EXPIRED WRIT OF SUMMONS

It was held in ANSA V. CROSS LINES LTD (2006) ALL FWLR (PT. 321) 1271 AT 1286 that:

“Service of an expired writ of summons without an order of Court renewing the same does not result in nullity of the writ or the service.”‘
Though the Writ had expired, there is no occasion for miscarriage of justice here.PER UWANI MUSA ABBA AJI, J.C.A.

INTERESTS: THE 2 TYPES OF INTERESTS AWARDED BY THE COURTS

It is trite that there are basically 2 types of interests awardable by the Courts, which are either pre-judgment interest or post-judgment interest.PER UWANI MUSA ABBA AJI, J.C.A.

PRE-JUDGMENT INTEREST: SCOPE

Although pre-judgment interests are awardable based on statute or contract as variously held by the Courts as held in M0NIER CONSTRUCTION CO. NIG. LTD V. E. AGBEJURE ENTERPRISES LTD (2013) LPELR-21167(CA); pre-judgment interests are equally grantable as it “smacks of a claim for interest as of right. In OKAFOR & ANOR V. EJIOGU (2011) LPELR-3923(CA), Per LOKULO-SODIPE, J.C.A, held:
‘A claim for pre-judgment interest is one which is calculated on a principal sum in a judgment at the pre-judgment interest rate from the date the cause of action accrued to the judgment date, It smacks of a claim for interest as of right,”PER UWANI MUSA ABBA AJI, J.C.A.

JUSTICE

UWANI MUSA ABBA AJIJustice of The Court of Appeal of Nigeria

ISAIAH OLUFEMI AKEJUJustice of The Court of Appeal of Nigeria

OLUDOTUN ADEBOLA ADEFOPE-OKOJIEJustice of The Court of Appeal of Nigeria

Between

1. PEUGEOT AUTOMOBILE NIG. LTD
2. TRUST FUND PENSION PLCAppellant(s)

AND

LAWAL ABUBAKARRespondent(s)

UWANI MUSA ABBA AJI, J.C.A.(Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High Court, Kaduna, holden at Kaduna in Suit No.FHC/KD/CS/45/2011, delivered on 26/3/2013 by Hon. Justice Evelyn Anyadike, wherein the Claims of the Respondent against the Appellants jointly and severally for the sum of N207,872,41.00 were granted.

The Respondent’s Claims at the lower Court against the Appellants under the “Undefended List” vide the Statement of Claim dated 1/3/2011 and filed on 8/3/2011 contained at pages 16-20 of the records were as follows:
1. The sum of Two Hundred and Seven Thousand, Eight Hundred and Seventy Two Naira, Forty One kobo (N207,872,41.00) and the benefit accrued on same from 1991 to date, being the sum deducted from the Plaintiffs salary by the In Defendant and credited into the second 2nd Defendant, then the National Provident Fund (N.P.F) the amount of which has not been paid to the Plaintiff and to which the Defendants have no defence.
2. 21% interest on the said sum of money and the benefit accrued on same till the date the judgment is delivered by the Court and interest of 10% from the date

of judgment till when it is finally liquidated, which the Defendants have no defence
3. The cost of this suit as may be assessed by this Court.

The facts of the case are that the Respondent worked in the 1st Appellant’s company from 1991 to 2007 when he disengaged his service. When in its service, he joined a Pension Contribution Scheme then called the National Provident Fund (NPF) and now known as NSITF by which a portion of his salaries were deducted and credited into the said Scheme. The Respondent’s contribution on the whole amounted to N207,872,41.00 as per the statement of NSITF contributions sent to the Respondent which amount was paid into the Scheme ran by the 2nd Appellant. After demand of his money, he was offered only 25% of the total contributions, hence the institution of this suit at the trial Court. After being served, the Appellants did not file any intention to defend the suit and did not appear which consequently made judgment to be entered against them.

Dissatisfied with the said judgment, the Appellants appealed vide a Notice of Appeal dated 18/6/2013 and filed on 19/6/2013, wherein 3 Grounds of Appeal were raised as herein

under reproduced without their particulars:
GROUNDS OF APPEAL:
GROUND ONE:
The learned trial Judge erred fundamentally in law when she proceeded and entered judgment against ,the Appellants when the writ before its service on the 2nd Appellant had expired and the service on both Appellants was fundamentally defective and incurably bad.
GROUND TWO:
The learned trial Judge erred fundamentally in law when she entered judgment in favour of the Respondent on the basis of undefended list procedure and held thus;
“It was held in Monguno us’ Bluewhale & Co. (2011) 2 NWLR (Pt. 1231) 275 that under the undefended list procedure where the Defendant neglects to put any defence the duty of the Defendant neglects to put any defence, the duty of the Court on the date fixed for hearing is to give judgment. Based on the above authorities and Order 12 Rules (1) and (4) of the Federal High Court Rules 2009, I hereby enter judgment in favour of the Plaintiff against the 1st and 2nd Defendants jointly and severally.
Without evaluating the materials placed before the Court by the Respondent as required by the law as held in

S.P.D.C Ltd vs. Artho Joe Nig Ltd (2006) All FWLR (Pt. 331) pg 1330 at 1345 Aubergine Collections Ltd vs. Habib Nig Bank Ltd (2002) FWLR (Pt. 177) pg 862 at 882 3.
GROUND THREE:
The learned trial Judge erred in law when she awarded 21% interest on the judgment sum without any basis in law and without commencement date.

In accordance with the Rules of this Court, the Appellants filed their Brief of Argument dated and filed on 1/9/2013. settled by M.T. Mohammed, Esq, wherein he formulated 3 issues for the determination of the appeal to wit:
1. Whether the entire proceeding was not a nullity by reason of fundamental defect in the service of the writ which had also expired as of the date of service?
2. Whether the trial Judge was correct to have entered judgment for the Respondent in view of the quality of materials placed before the Court which material was not evaluated?
3. Whether the trial Court was right in awarding 21% interest on the judgment sum in the circumstances of this case?

The Respondent did not file any Brief of argument. Leave was thus granted to the Appellant by this Court on the 10/11/2015 to hear the

appeal on the Appellant’s Brief alone.

At the hearing of the appeal on 22/2/2016, the learned Counsel to the Appellants adopted his Brief of argument and prayed this Court to allow the appeal. The appeal shall be determined on the sole issue formulated by me thus:
Whether the judgment of the trial Court can be sustained in the midst of a defective Writ.

It is contended by the learned Counsel to the Appellants that the writ served on the 2nd Appellant on 4/12/2012 had expired around September, 2012. He maintained that a defective writ renders the service incurably bad and nullifies the whole proceedings. He cited OWNERS OF THE MV ARABELIA V. N.A.I.C (2009) ALL FWLR (pt.443) 1208, AUTO IMPORT-EXPORT V. ADEBAYO (2003) FWLR (PT. 140) 1686, SOCIETY GENERAL BANK (NIG) LTD V, ADEWUNMI (2003) FWLR (PT. 158) PG 1181. Similarly, that the process must be served in accordance with the provision of Order 6 Rule 8 of the Federal High Court (Civil Procedure) rules, 2009 and Section 78 of CAMA, otherwise it will be set aside. He relied on OYUN LOCAL GOV. V. F.A.B.S LTD (2006) ALL FWLR (PT. 334) PG 1983 AT 1999 PARAS G-H, INTERGRATED BUILDERS LTD

V. DOMZAG VENT. (NIG) LTD (2005) ALL FWLR (PT. 263\ 280 AT 795, DANIELS VS. INSIGHT ENG. CO. LTD (2002) FWLR (PT. 99) 1113. He submitted that service on a company must be done in accordance with Section 78 of CAMA and relied on COKER v. OBAWOLE (2002) FWLR (PT. 131) 2021.

He also submitted that the trial Court entered judgment without evaluating any evidence. He quoted S.P.D.C LTD V. ARTHO JOE LTD (2006) ALL FWLR (PT. 331) PG 1330 AT 1345 PARA C-E, AUBERGINE COLLECTION LTD V. HABIB NIG BANK LTD (2002) FWLR (PT. 128) PG 1276 AT 1286 PARA B-D, SAGAY V. SAJERE (2000) FWLR (PT. 7) PG 1111 AT 1122-3 SHAMAKI V. BABA (2000) FWLR (PT. 26) PG 878 AT 1888, WALTER V. SKYLI (NIG) LTD (2000) FWLR (PT. 13) 2244 AT 2265, ODUSOTE V. ODUSOTE (2013) ALL FWLR (PT. 668) 867 AT 886 PARA G-H to submit that the Court is bound to evaluate the evidence of a party even if one party leads evidence.

It is again contended that the trial Judge did not indicate when the 21% interest should begin to run. Thus, pre-judgment interest is only awarded in specific times and is most inappropriate in this instance, He relied on TEXACO OVERSEAS PETROLEUM UNLTD V. PEDMAR LTD (2002) FWLR

(PT. 126) 885 AT 901 PARA D-E, M & M ELECTRICAL CO. LTD V. GOVERNMENT, CROSS RIVER STATE (2005) ALL FWLR (PT, 284, 350 AT 369-370 PARAS E-B. He argued that the claim of the Respondent does not therefore qualify as liquidated money under the undefended list procedure. He citedGARBA V. SHEDA INT’L (NIG) LTD (2002) FWLR (PT. 113) 245 AT 259. Also, that the discretion to award post-judgment interest must be exercised judicially and judiciously. He relied on USANI V. DUKE (2005) ALL FWLR (PT. 244) 960, SHITTU v. PEUGEOT AUTOMOBILE NIG LTD (2005) ALL FWLR (PT. 253) 682. He urged this Court to dismiss the trial Courts judgment and uphold the appeal in following the case of LAFIA LG VS. EXEC. GOV. NASARAWA STATE (2013) ALL FWLR (PT. 668) 956 AT 980 PARA B.

Defendant. Thus, Non-service is a fundamental defect that affects the jurisdiction of a Court. See MADUKOLU V. NKEMDILIM (1962) 1 ALL NLR 587; SKENCONSULT (NIG) LTD v. UKEY (1981) 1 SC 6; OKAFOR V. IGBO (1991) 8 NWLR (PT.210) 476. It is on record however that the both the Appellants were duly served. This was clearly recorded and captured in the trial Courts judgment when at page 55 of paragraph 2 thereof, it observed that:
“The Defendants were properly served with the Writ and hearing notices but they did not file any intention to defend the Suit and did not appear.”
It is observable that the Appellants contention is that the proper service on the principal officers of the Appellants was not effected in accordance with Section 78 of CAMA. As true and trite as this is, the records before this Court is as evidenced in the judgment of the trial Court at page 55 of the 3rd paragraph thus:
“The 1st Defendant was served on 31st May 2012 through the legal officer one Abdulsallam Aliyu while 2nd Defendant was served on the 4th December 2012 through the secretary of the 3rd Defendant.”

It is in evidence that the Appellants at the

lower Court were dragged to the Court by the Respondent vide a writ of summons dated 8/3/2011 as contained at page 16 of the records with very clear and indisputable evidence that both the Appellants were served and judgment was entered in accordance with the Undefended list procedure. Furthermore, at page 48 of the records, there is an evidence of affidavit of service sworn by the Bailiff of the trial Court of effecting service on both the Appellants on 31/5/2012 and 4/6/2012 respectively before the trial Court delivered its judgment.

On the issue of expired writ, it is evident that the 2nd Appellant was served when the writ had expired with about a month. Nevertheless, expiration of a writ is an irregularity. It was held in ANSA V. CROSS LINES LTD (2006) ALL FWLR (PT. 321) 1271 AT 1286 that:
“Service of an expired writ of summons without an order of Court renewing the same does not result in nullity of the writ or the service.”‘
Though the Writ had expired, there is no occasion for miscarriage of justice here.

Moreover, it is on record that they Appellants were served and they knew the case brought against them. Besides, this is a fresh issue

canvassed here on appeal and there is no where shown that the leave of this Court was sought and obtained. See C.C.C.T.C.S. VS. EKPO (2001) FWLR (PT.82) P.2058 AT 2071 PARAS. E-G.

It is apparent that the trial Court was certain that the Appellants were served before he proceeded to enter judgment in favour of the Respondent as rightly observed above. Besides, at the hearing of the case on 15/10/2012 and 14/1/2013 respectively at pages 50-51 of the records, the trial Court rightly ordered “hearing notices” to be issued the Appellants. This was of course after service was effected on them.

In determining disputes between parties, the documents speak for themselves and every evaluation is tied to the documents. In this appeal, the Respondent has placed before the trial Court Exhibits A1-A4 contained at pages 10-13 of the records to show abundantly that aside the fact that he worked with the 1st Appellant and monies were deducted from his salaries for the pension Scheme, his whole contributions to the pension Scheme amounted to N207,872,41.00 as per the statement of NSITF contributions sent to the Respondent which amount was paid into the Scheme ran by

the 2nd Appellant.

The fact that there is no allegation of non-remittance against the 1st Appellant does not make the case of the Respondent defective as the joinder of a wrong party in law is not bad. Besides, this is remedied by an application if the 1st Appellant had desired not to be a party for that purpose. In USMAN & ORS V. LAWAL & ORS (2009) LPELR- 8273(CA), it was held that:
‘Non-joinder or misjoinder of a party is not fatal to a suit; the defect in each being amenable in the manner provided in the Rules, The error may be amended by either party to the proceedings or a third party having interest in the suit or by the Court, on an application to it, or on its own motion,”

It is trite that there are basically 2 types of interests awardable by the Courts, which are either pre-judgment interest or post-judgment interest. Although pre-judgment interests are awardable based on statute or contract as variously held by the Courts as held in M0NIER CONSTRUCTION CO. NIG. LTD V. E. AGBEJURE ENTERPRISES LTD (2013) LPELR-21167(CA); pre-judgment interests are equally grantable as it “smacks of a claim for interest as of right. In

OKAFOR & ANOR V. EJIOGU (2011) LPELR-3923(CA), Per LOKULO-SODIPE, J.C.A, held:
‘A claim for pre-judgment interest is one which is calculated on a principal sum in a judgment at the pre-judgment interest rate from the date the cause of action accrued to the judgment date, It smacks of a claim for interest as of right,”
By extension, Per Rhodes-Vivour JCA, in P.T.F. V. W.P.C. LTD. (2007) 14 NWLR (PT. 1055) 478 AT 500 PARAS F-G, held:
“When actions are brought on Commercial matters, the Courts usually find that money ought to have been paid some time ago, In such cases it ought to carry interest and that is pre-judgment interest The time, pre-judgment, when it would start to run depends on evidence, The basis of such an award is that the defendant had kept the plaintiff out of his money, and the defendant has had the use of it for himself, so he ought to compensate the plaintiff accordingly.
See EKWUNIFE V. WAYNE (W.A) LTD (1939) 5 NWLR (PT. 122) 422; TEXACO V. PEDMAR (NIG). LTD. (2002) 13 NWLR (PT. 785) 526; HARBUTT’S PLASTICINE LTD. V. WAYNE TANK AND PUMP CO. LTD. (1970) 1 ALL ENG REPORTS 225; A.B. KEMP LTD. & ORS v. TOLLAND

(1956) 2 LLOYDS LIST REPORT 681.

In this appeal, the Respondent pleaded at pages 18-20 of the records of how he is entitled to 21% pre-judgment interest from the Appellants who after demand of his N207,872,41.00 contribution to the pension Scheme managed by the 2nd Appellant, refused or neglected to pay him in 2004 since 1991 when same had been contributed and due for payment to him after his disengagement. It is pertinent to note that this money is his personal contribution and savings for his retirement which the 2nd Appellant has kept for business on behalf of the Respondent. It was held inFARASCO NIGERIA LTD & ANOR. V. PETERSON ZOCHONIS INDUSTRIES PLC (2010) LPELR-4142 (CA) that “…regarding the pre-judgment interest at the rate of 2lo/o awarded by the trial Court, it is pertinent to note that pre-judgment interest must not only be pleaded but must be strictly proved.” Again, it was held in HENKEL CHEM. LTD. V. AG FERRERO & CO. (2003) 4 NWLR 810 AT 306 that:
“The law is settled on the pre-requisite for the award of prejudgment interest, The interest must have been claimed in the Writ and Statement of Claim, and evidence must have been

led in support of the claim.”
See also F.B.N. PLC. V. EXCEL PLAST, IND. LTD. (2003) 13 NWLR 837 AT 412. It is therefore right to award 21% pre-judgment interest to the Respondent as same was pleaded and he is entitled to it as of right.

On the claim of post-judgment interest, it is trite that Courts are statutorily mandated to grant same except it is beyond 10% per annum. In the instant appeal, the Respondent claimed “interest of 10% from the date of judgment till when it is finally liquidated” at page 20 of the records from the Appellants and same was granted by the trial Court at page 56 of the records. It was succinctly held in CROWN FLOUR MILLS LTD v. OLOKUN (2008) 4 NWLR (PT. 1077) 254 AT p. 288. PARAS F-G that:
‘All the High Court Rules of the various States of the Federation, including Order 40 Rule 7 of the High Court of Kwara State (Civil Procedure) Rules, 1989, provide for post judgment interest which the Court awards in favour of the victorious pafi and evidence need not be given for it to be awarded.”
Similarly, in ASSAM v. D.F.S. LTD. (2007) 16 NWLR (PT.1060) 234 AT 242 – 243 PARAS H-B, the Court held:
“By virtue of the

provision of Order 40 Rule 7 High Court of Cross River State (Civil Procedure) Rules, a High Court does not have power to award a post judgment interest beyond 10% per annum. In the instant case, the trial Court erred in its award of post judgment interest of 10% per month,., The lower Court exceeded its powers under Order 40 Rule 7 of the Cross River State High Court (Civil Procedure) Rules which imposes a ceiling on post-judgment interest rate at 10% per annum.

In this appeal, it has not been shown that the trial Court exceeded its power by awarding a post-judgment interest beyond 10% nor that it was per month and not per annum. The Respondent is entitled to 21% prejudgment interests from 2004 when the statement of NISTF contributions for the month of June, 2014 was sent to the Respondent by the 2nd Appellant. I therefore resolve this issue against the Appellants. The judgment of the trial Court in Suit No. FHC/KD/CS/45/2011, delivered on 26/3/2013 by Hon. Justice Evelyn Anyadike is hereby affirmed.
Consequently, the appeal fails and it is hereby dismissed. I make no order as to costs.

ISAIAH OLUFEMI AKEJU, J.C.A.: My

learned brother, UWANI MUSA ABBA AJI JCA gave me the opportunity of reading before now the judgment just delivered. I agree with the reasoning and conclusion of my learned brother consequent upon which I dismiss the appeal and abide by the consequential order.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I am in agreement with the lead judgment of my learned brother Uwani Musa Abba Aji JCA, that this appeal lacks merit and should be dismissed.

The Judgment of the lower Court is accordingly affirmed. There shall be no order as to costs.

Appearances

M.T. MOHAMMED, ESQ.For Appellant

AND

NO APPEARANCEFor Respondent