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UKO & ORS v. GOVT OF THE FEDERATION OF NIGERIA & ORS (2021)

UKO & ORS v. GOVT OF THE FEDERATION OF NIGERIA & ORS

(2021)LCN/15762(CA)

In the Court of Appeal

(CALABAR JUDICIAL DIVISION)

On Tuesday, November 02, 2021

CA/C/6/2008(CONSOLIDATED)

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Ademola Samuel Bola Justice of the Court of Appeal

Between

1. CHIEF JAMES I UKO 2. MR. COLUMBUS OKO ADI 3. MR. PATRICK UKO ASHO (For Themselves And On Behalf Of The Umuruya Community Of Ishibori, Ogoja, Cross River State Of Nigeria) 1. CHIEF AUGUSTINE A. AYIM 2. CHIEF J. I. C. IGBE (For Themselves And On Behalf Of The Umuruya Community Of Ishibori, Ogoja, Cross River State Of Nigeria) APPELANT(S)

And

  1. GOVERNMENT OF THE FEDERATION OF NIGERIA 2. ATTORNEY-GENERAL OF THE FEDERATION AND MINISTER OF JUSTICE 3. HON. MINISTER OF DEFENCE DR. MATHIAS OKO OFOBOCHE 1. GOVERNMENT OF THE FEDERATION OF NIGERIA 2. ATTORNEY-GENERAL OF THE FEDERATION AND MINISTER OF JUSTICE 3. HON. MINISTER OF DEFENCE DR. MATHIAS OKO OFOBOCHE RESPONDENT(S)

 

RATIO

THE BURDEN OF PROOF IN CIVIL ACTIONS

It is settled law that the burden of proof in an action lies on the party who would fail if no evidence at all were given on either side, in the instant case, the burden of establishing interest rate on the Appellants was not discharged by the Appellants. See Section 131, Evidence Act 2011. Kwasalaba v. Okonkwo (1992) 1 NWLR (Pt. 218) 407; Umeojiako v. Ezenamuo(1990) 1 NWLR (pt. 126) 252 at 267; REO Enterprises (Nig) Ltd. v. Nwosu (2002) 11 WRN 16 at 33. PER OWOADE, J.C.A.

WHETHER OR NOT A PARTY WHO DESIRES ANY COURT TO GIVE JUDGEMENT AS TO ANY LEGAL RIGHT ON THE EXISTENCE OF FACTS  MUST PROVE THE EXISTENCE OF FACTS

By virtue of Sections 131, 132 and 133 of the Evidence Act, whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist. The appellants having claimed the N30 Million interest must prove the existence of such facts. Also having relied on documentary evidence, they were duty bound to testify to its contents. Where, however, such documents involves mathematical calculations, how the figures were arrived at must be demonstrated in open Court. Thus, it is not the duty of the Court to sort out the exhibits, figures and do calculations in chambers to arrive at a figure to be given in judgment. See ANDREW V. INEC (2018) 9 NWLR (prt. 1625) 507. PER SHUAIBU, J.C.A.

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This consolidated appeal arose from the decision of His Lordship, the Hon. Justice A.O. Ajakaiye contained in his judgment of Thursday, the 27th day of April 2006, in suit No. FHC/CA/24/1995 consolidated with suit No. FHC/CA/23/1995.

The Appellants who were the plaintiffs in Suit No. CA/CS/24/1995 which was consolidated with Suit No. FHC/CA/CS/23/1995 claimed in their Amended Statement of Claim as follows:
(a) Compensation at the approved rate of N3,750.00 (Three Thousand, Seven Hundred and Fifty Naira) only for 643.502 Hectares of land totaling N2,413,128.75k (Two Million, Four Hundred and Thirteen Thousand, One Hundred and Twenty Eight Naira, Seventy Five Kobo) only for their acquired land.
(b) Interest at Bank Rate from 1977–1996 totaling N30,000,000.00 (Thirty Million Naira) only. At the hearing, the plaintiffs shall rely upon and hereby plead the interest computations made by the Central Bank of Nigeria or any other reputed commercial bank at the rate prevailing at all material times from 1977–1996.
(c) Interest at 12% from judgment until payment. (page 46 of the Record of Appeal.)

The trial Court in its judgment granted prayers (a) and (c) sought by the plaintiffs (Appellants) and did not grant prayer (b). The trial Judge in paragraph 2 of the judgment stated thus: “They claim interest at bank rate from 1977 to 1996. No evidence was given of this, particularly as to what the bank rate is. I find it difficult in acceding to that.” See page 223, lines 20 -21 of the Record of Appeal.

The Appellants filed a Notice of Appeal containing two (2) grounds of appeal. The relevant briefs of Argument for Appeal No. CA/C/6/2008 are as follows:
1. Appellants’ brief of Argument which was filed on 6-10-2011 but deemed filed on 13-3-2012. It is settled, by E.L. Akpama, Esq.
2. 1st and 2nd Respondents’ brief of Argument which was filed on 21-01-2019. It is settled by B U. UKO, Esq.
3. 3rd Respondent’s brief of Argument which was filed on 14–05-2019. It is settled by Ibrahim Etsu, Esq.
​4. 4th Respondent’s brief of Argument [Incorporating Respondent’s Notice of intention to vary/affirm judgment] which was filed on 26-3-2012. It is settled by Chief Okoi O. Obono–Obla.

Learned counsel for Appellants nominated only one (1) issue from the two grounds of appeal filed in this appeal. The three sets of Respondents, that is the 1st and 2nd Respondents, the 3rd Respondent and the 4th Respondent adopted the sole issue nominated by the Appellants.

In this appeal, the submission of the Appellants shall be placed on one side of the scale of justice while the submissions of the three (3) sets of Respondents shall together be placed on the other side of the scale of justice as the submissions of the “Respondents”.

This is for the reason of the shared common interest between the Respondents and also for convenience.

The sole issue nominated for determination in this appeal is “Whether the learned trial Judge was right in rejecting the appellant’s claim for interest considering the totality of the evidence before him and the circumstance of the case”.

On the sole issue for determination, learned counsel for the Appellants referred to paragraph 2 of the judgment of the trial Court at pages 223 lines 20 – 21 of the record where the trial judge stated that:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

“They claim interest at bank rate from 1977 to 1996. No evidence was given of this particularly as to what the bank rate is. I find it difficult in acceding to that”.

He submitted that the above reasoning by the trial Court is at variance with the evidence led by the Appellants in the case before it.

The learned trial Judge, said counsel, had acknowledged at page 223 lines 9–16 of the record that the Plaintiffs/Appellants had tendered the notice of requisition issued by the 3rd Defendant (Respondent) to which is annexed a schedule of payment made pursuant to the Public Land Acquisition (Miscellaneous Provisions) Decree, 1976. That the trial Judge had relied heavily on Exhibit D1 and MM in arriving at the total compensation due to the Appellants/Plaintiffs. Exhibit D1 and MM also contains the interest payable in cases of delayed payment of compensation which was the prevailing bank rate of 21% per annum.

Appellants’ counsel submitted that the schedule of payment made pursuant to the Public Lands Acquisition (Miscellaneous Provisions) Decree, 1976 is an official document which Section 113(a)(1) of the Evidence Act makes provision for as a part of the provisions made for documentary evidence under the Act. It is an official Gazette. Also that a gazette serves as an official communication of the Government of Nigeria or of any State thereof or of any Local Government. As documentary evidence, the contents of a gazette or official document is prima facie proof of any fact of a public nature which the gazette or official document is intended to notify. Facts therein, said counsel, are presumed to be true unless disproved by some evidence to the contrary. He referred to the case of Our Line Ltd. v. S.C.C. (Nig) Ltd. (2009) 17 NWLR (Pt. 1170) 382 at 392 H. 9.

He submitted further that the trial Judge having relied on Exhibit D1 and MM in arriving at the compensation payable ought to have relied on the same Exhibit in arriving at the interest payable to the Appellants. That the learned trial Judge was therefore wrong to have held as he did that there was no evidence as it was, on the interest payable.

It is trite law, said counsel, that once a document is received in evidence, and is so marked, it becomes an evidence before the Court or Tribunal and it has the duty to evaluate the probative value of every exhibit tendered before it. He referred to the cases of Awuse v. Odili (2005) 16 NWLR (Pt. 952) 416, INEC v. Oshiomhole (2009) 4 NWLR (Pt. 1132) 607 at 624 H. 8. Page 665 paras E – H.

Appellants’ counsel insisted that documentary evidence remains the best evidence. It is the best proof of the contents of such document and no oral evidence will be allowed to discredit or contradict the contents thereof, except where fraud is pleaded. He referred to the cases of Egharevba v. Osagie (2009) 18 NWLR (Pt. 1173) 299 at 302 H. I; E. A. Ltd. Ind. V. NERFUND (2009) (Pt. 1144) 535 at 530 H. 17.

He submitted that as soon as the Respondents acquired the Appellants’ land, Exhibit D1 and MM assumed the status of an agreement which is binding on the parties. Once an agreement has been committed into writing and executed by the parties, it is binding on them and one cannot use parole evidence to alter its terms. He referred again to the case of Egharevba v. Osagie (supra) H. 2.

He submitted that award of interest is based on either prior agreement of the parties as contained in a document to that effect or as provided by a rule of Court. He added that where interest is being claimed as a matter of right, the proper practice is to claim entitlement to it on the writ and plead facts which show such an entitlement in the statement of claim. He referred to the case of G.K.F.I. Nig. Ltd V. NITEL 2009) 15 NWLR (Pt. 1164) 344 at 352 H. 11.

He submitted that a cursory look at the Appellants’ case before the trial Court will reveal that the Appellants did not only plead and prove facts in their amended statement of claim showing the proper rate of interest payable, they also established by credible evidence, the date from which it should begin to run and above all their right to the sum claimed. On this, he referred to the case of Ekiti L.G. A. v. Aje Printing (Nig.) Ltd. (2009) 4 NWLR (Pt. 1131) 304 at 306.

He argued that the award of interest in the event of delayed payment of compensation is not in controversy since it is provided for in the gazette, similarly the rate of interest of 21% is not in dispute thus the award of interest should flow naturally from the grant of the Appellants’ claim by trial Court. He reasoned that no additional evidence was required and the trial Court ought to have accepted the prevailing bank rate as proved, since it was not specifically denied or controverted by the Respondents; it is deemed admitted and requires no further proof. He referred to the case of Adeleke vs. Osha (2006) 16 NWLR (Pt. 1006) AT648, H – 40 WEMA BANK PLC VS. ABIODUN (2006) 9 NWLR (PT. 984) 1 AT H – 6.

From the above, said counsel, it is crystal clear that the learned trial Judge failed to consider and properly evaluate Exhibit D1 and MM which was before him and therefore occasioned a substantial miscarriage of justice. That a trial Court has a duty to consider and appraise all evidence before it. Where it fails to do so, this Court has the power to determine such issues. He referred on this to the cases of GFKI (Nig.) Ltd v. NITEL PLC (2009) 5 NWLR (Pt. 1164) P. 344 at 357, 366, A.T.E. Co. Ltd V. MIL. GOV. Ogun State (2009) 15 NWLR (Pt. 1163) 26 at 34.

He urged us to review the evidence on record particularly Exhibit D1 and Exhibit MM, resolve the sole issue in the Appeal in the favour of the Appellants and grant the Appellants’ claim for pre–judgment interest as provided by the decree.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

The Respondents submitted on the sole issue for determination that a claim for the judgment interest may be made by a plaintiff as a right where it is either expressly provided for in or is contemplated by the agreement between the parties or under a mercantile custom or a principle of equity such as breach of fiduciary relationship.

Reference was hereunder made to the case of A.G. FERRERO V. HENKEL CHEMICALS (2011) 46 (pt. 2) NSCQR 822 at pp. 839 – 840.

It was submitted on behalf of the Respondents that the Appellants in their amended statement of claim, claimed the award of interest at bank rate from 1977 to 1996, totaling N30,000,000.00 (Thirty Million Naira ) only, but that no evidence was adduced at the trial to show how the Appellants got the total sum of N30,000,000.00 (Thirty Million Naira).

The Respondents submitted that the Appellants did not plead the grounds and basis upon which they got the sum at N30,000,000.00 (Thirty Million Naira) only as interest that should be awarded to them.

The Respondents noted that though the Appellants tendered Exhibits D, D1 and MM respectively, their witnesses did not lead evidence as to how these Exhibits proved their right to claim pre-judgment interest at bank rate from 1977 to 1996.

The Respondents submitted that it is trite law that facts deposed in pleadings must be substantiated and proved by evidence in the absence of which the averments are deemed abandoned. Also that it is not for the Court to speculate or conjecture or assume the facts relevant to the claim. The relevant facts must be pleaded as facts not pleaded go to no issue. On this, Respondents referred to the cases ofA. G. FERRERO V. HENKEL CHEMICALS (supra); Aregbesola v. Oyinlola (2011) 9 NWLR (Pt. 1253) pg. 458 at pg. 594.

It was further submitted on behalf of the Respondents that the burden of proving a particular fact is on the party who asserts it. That the Appellants were given the opportunity at the trial to prove that they are entitled to N30,000,000.00 (Thirty Million Naira) only as interest on the pre-judgment sum and the prevailing bank rate and at whose computation they are so entitled but failed to do so.

The onus was on the Appellants to prove their assertion. On this, reference was made to the case of Union Bank of Nigeria v Prof. A.O. Ozigi ​(1994) 3 NWLR (Pt. 333) pg. 385.

Finally, it was submitted for the Respondents that the Appellants’ claim for interest at bank rate from 1977 to 1996 based on Exhibit D, D1 and MM is a new and fresh issue as it was not the basis of the Appellants’ claim at the trial Court. They (Respondents) noted that the Appellants cannot raise a new issue on appeal except with leave of Court which was neither sought nor obtained.

Reference was made to the case of Bamikole v. Oladele (2011) All FWLR (Pt. 562) pg. 1699. Respondents urged us to uphold the judgment of the trial Court.

Resolution of Sole Issue
By paragraph 9 (b) of the Appellants’ Amended Statement of claim, the Appellants averred that:
(b) interest at Bank Rate from 1977-1996= N30,000,000.00.
At the hearing, the plaintiffs shall rely upon and hereby plead the interest computations made by the Central Bank of Nigeria or any reputed Commercial Bank at the rate prevailing at all material times from 1977 to 1996 …

​The Appellants have the burden of establishing the rate of interest on which it predicated its computation of the amount owed to it. Unfortunately in the instant case, there is no whit, iota, scintilla or shred of evidence on the rate at which the interest supposedly claimed by the Appellants was calculated.
It is settled law that the burden of proof in an action lies on the party who would fail if no evidence at all were given on either side, in the instant case, the burden of establishing interest rate on the Appellants was not discharged by the Appellants. See Section 131, Evidence Act 2011. Kwasalaba v. Okonkwo (1992) 1 NWLR (Pt. 218) 407; Umeojiako v. Ezenamuo(1990) 1 NWLR (pt. 126) 252 at 267; REO Enterprises (Nig) Ltd. v. Nwosu (2002) 11 WRN 16 at 33.

In the instant case, distinct and separate from the fact that the Appellants did not specifically plead the applicable interest rate intended to rely on in their computations, none of their witnesses testified to the said interest rate or how they arrived at the amount of N30,000,000.00 (Thirty Million Naira) only.

Indeed, Exhibit D1 and MM now sought to be relied upon in this appeal were tendered for a purpose different from the fresh/new claim of pre-judgment interest rate. The viva voce evidence of PW1 on the point is opposite. <br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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“The entitlement of our community in respect of the land is N10.8 million which we are claiming. I also claim interest of 12% after judgment until payment is made”.

Put in another way, the Appellants’ claim for Thirty Million Naira pre-judgment interest was not demonstrated by credible evidence. For the umpteenth time, I must say that a trial is not an investigation and investigation is not the function of a Court. The function of a Court is to examine and decide on evidence that has been demonstrated and tested by the parties.

In the circumstance, the learned trial judge was right to have held that “They claim interest at bank rate from 1977 to 1996. No evidence was given of this, particularly as to what the Bank rate is. I find it difficult in acceding to that”.

The sole issue in their appeal is resolved against the Appellants. Having resolved the sole issue against the Appellants, the appeal lacks merit and it is dismissed.

Finally having dismissed the Appellants appeal, I do not consider it necessary to consider the 4th Respondent’s Notice of Intention to vary/affirm judgment …”

​Parties to this appeal are to bear their respective costs.

APPEAL NO. CA/C/28/2009
The relevant briefs of Argument for Appeal No. CA/C/28/2009 are as follows:
1. Appellants’ brief of Argument which was filed on 6-10-2011 but deemed filed on 13-3-2012. It is settled by E. L. Akpama, Esq.
2. 1st and 2nd Respondents’ brief of Argument which was filed on 21-01-2019. It is settled by B.U. UKO, Esq.
3. 3rd Respondent’s brief of Argument which was filed on 14–05-2019. It is settled by Ibrahim Etsu, Esq.
4. 4th Respondent’s brief of Argument [Incorporating Respondent’s Notice of intention to vary/affirm judgment] which was filed on 26-3-2012. It is settled by Chief Okoi O. Obono–Obla.

Learned counsel for Appellants nominated only one (1) issue from the two grounds of appeal filed in this appeal. The three sets of Respondents, that is the 1st and 2nd Respondents, the 3rd Respondent and the 4th Respondent adopted the sole issue nominated by the Appellants.

In this appeal, the submission of the Appellants shall be placed on one side of the scale of justice while the submissions of the three (3) sets of Respondents shall together be placed on the other side of the scale of justice as the submissions of the “Respondents”.

This is for the reason of the shared common interest between the Respondents and also for convenience.

The sole issue nominated for determination in this appeal is “Whether the learned trial Judge was right in rejecting the Appellants’ claim for interest considering the totality of the evidence before him and the circumstance of the case”.

On the sole issue for determination, learned counsel for the Appellants referred to paragraph 2 of the judgment of the trial Court at pages 223 lines 20 – 21 of the record where the trial judge stated that:
“They claim interest at Bank rate from 1977 to 1996. No evidence was given of this particularly as to what the Bank rate is. I find it difficult in acceding to that.”

He submitted that the above reasoning by the trial Court is at variance with the evidence led by the Appellants in the case before it.

The learned trial Judge, said counsel, had acknowledged at page 223 lines 9–16 of the record that the Plaintiffs/Appellants had tendered the notice of requisition issued by the 3rd Defendant (Respondent) to which is annexed a schedule of payment made pursuant to the Public Land Acquisition (Miscellaneous Provisions) Decree, 1976. That the trial Judge had relied heavily on Exhibit D1 and MM in arriving at the total compensation due to the Appellants/Plaintiffs. Exhibit D1 and MM also contains the interest payable in cases of delayed payment of compensation which was the prevailing bank rate of 21% per annum.

Appellants’ counsel submitted that the schedule of payment made pursuant to the Public Lands Acquisition (Miscellaneous Provisions) Decree, 1976 is an official document which Section 113(1)(a) of the Evidence Act makes provision for as a part of the provisions made for documentary evidence under the Act. It is an official Gazette. Also that a gazette serves as an official communication of the Government of Nigeria or of any State thereof or of any Local Government. As documentary evidence, the contents of a gazette or official document is prima facie proof of any fact of a public nature which the gazette or official document is intended to notify. Facts therein, said counsel, are presumed to be true unless disproved by some evidence to the contrary. He referred to the case of Our Line Ltd. v. S.C.C. (Nig) Ltd. (2009) 17 NWLR (Pt. 1170) 382 at 392 H. 9.

He submitted further that the trial Judge having relied on Exhibit D1 and MM in arriving at the compensation payable ought to have relied on the same Exhibit in arriving at the interest payable to the Appellants. That the learned trial Judge was therefore wrong to have held as he did that there was no evidence as it was, on the interest payable.

It is trite law, said counsel that once a document is received in evidence, and is so marked, it becomes an evidence before the Court or Tribunal and it has the duty to evaluate the probative value of every exhibit tendered before it. He referred to the cases of Awuse v. Odili (2005) 16 NWLR (Pt. 952) 416, INEC v. Oshiomhole (2009) 4 NWLR (Pt. 1132) 607 at 624 H. 8. Page 665 paras E – H.

Appellants’ counsel insisted that documentary evidence remains the best evidence. It is the best proof of the contents of such document and no oral evidence will be allowed to discredit or contradict the contents thereof, except where fraud is pleaded. He referred to the cases ofEgharevba v. Osagie (2009) 18 NWLR (Pt. 1173) 299 at 302 H. I; E. A. Ltd. Ind. V. NERFUND (2009) (Pt. 1144) 535 at 530 H. 17.

He submitted that as soon as the Respondents acquired the Appellants’ land, Exhibit D1 and MM assumed the status of an agreement which is binding on the parties. Once an agreement has been committed into writing and executed by the parties, it is binding on them and one cannot use parole evidence to alter its terms. He referred again to the case of Egharevba v. Osagie (supra) H. 2.

He submitted that award of interest is based on either prior agreement of the parties as contained in a document to that effect or as provided by a rule of Court. He added that where interest is being claimed as a matter of right, the proper practice is to claim entitlement to it on the writ and plead facts which show such an entitlement in the statement of claim. He referred to the case of G.K.F.I. Nig. Ltd V. NITEL 2009) 15 NWLR (Pt. 1164) 344 at 352 H. 11.

He submitted that a cursory look at the Appellants’ case before the trial Court will reveal that the Appellants did not only plead and prove facts in their amended statement of claim showing the proper rate of interest payable, they also established by credible evidence, the date from which it should begin to run and above all their right to the sum claimed. On this he referred to the case of Ekiti L.G. A. v. Aje Printing (Nig.) Ltd. (2009) 4 NWLR (Pt. 1131) 304 at 306.

He argued that the award of interest in the event of delayed payment of compensation is not in controversy since it is provided for in the gazette, similarly the rate of interest of 21% is not in dispute thus the award of interest should flow naturally from the grant of the Appellants’ claim by trial Court. He reasoned that no additional evidence was required and the trial Court ought to have accepted the prevailing bank rate, as proved since it was not specifically denied or controverted by the Respondents; it is deemed admitted and requires no further proof. He referred to the case of Adeleke vs. Osha (2006) 16 NWLR (Pt. 1006) AT 648, H – 40 WEMA BANK PLC VS. ABIODUN (2006) 9 NWLR (PT. 984) 1 AT H – 6.

From the above, said counsel, it is crystal clear that the learned trial Judge failed to consider and properly evaluate Exhibit D1 and MM which was before him and therefore occasioned a substantial miscarriage of justice. That a trial Court has a duty to consider and appraise all evidence before it. Where it fails to do so, this Court has the power to determine such issues. He referred on this to the cases of GFKI (Nig.) Ltd v. NITEL PLC (2009) 5 NWLR (Pt. 1164) P. 344 at 357, 366, A. T. E. Co. Ltd V. MIL. GOV. Ogun State (2009) 15 NWLR (Pt. 1163) 26 at 34.

He urged us to review the evidence on record particularly Exhibit D1 and Exhibit MM, resolve the sole issue in the Appeal in the favour of the Appellants and grant the Appellants’ claim for pre–judgment interest as provided by the decree.

The Respondents submitted on the sole issue for determination that a claim for the judgment interest may be made by a plaintiff as a right where it is either expressly provided for in or is contemplated by the agreement between the parties or under a mercantile custom or a principle of equity such as breach of fiduciary relationship.

Reference was hereunder made to the case of A.G. FERRERO V. HENKEL CHEMICALS (2011) 46 (pt. 2) NSCQR 822 at pp. 839 – 840.

It was submitted on behalf of the Respondents that the Appellants in their amended statement of claim, claimed the award of interest at bank rate from 1977 to 1996, totaling N30,000,000.00 (Thirty Million Naira ) only, but that no evidence was adduced at the trial to show how the Appellants got the total sum of N30,000,000.00 (Thirty Million Naira).

The Respondents submitted that the Appellants did not plead the grounds and basis upon which they got the sum at N30,000,000.00 (Thirty Million Naira) only as interest that should be awarded to them.

The Respondents noted that though the Appellants tendered Exhibits D, D1 and MM respectively, their witnesses did not lead evidence as to how these Exhibits proved their right to claim pre-judgment interest at bank rate from 1977 to 1996.

The Respondents submitted that it is trite law that facts deposed in pleadings must be substantiated and proved by evidence in the absence of which the averments are deemed abandoned. Also that it is not for the Court to speculate or conjecture or assume the facts relevant to the claim. The relevant facts must be pleaded as facts not pleaded go to no issue. On this, Respondents referred to the cases of A.G. FERRERO V. HENKEL CHEMICALS (supra); Aregbesola v. Oyinlola (2011) 9 NWLR (Pt. 1253) pg. 458 at pg. 594.

It was further submitted on behalf of the Respondents that the burden of proving a particular fact is on the party who asserts it. That the Appellants were given the opportunity at the trial to prove that they are entitled to N30,000,000.00 (Thirty Million Naira) only as interest on the pre-judgment sum and the prevailing bank rate and at whose computation they are so entitled but failed to do so.

The onus was on the Appellants to prove their assertion. On this, reference was made to the case of Union Bank of Nigeria v Prof. A. O. Ozigi (1994) 3 NWLR (Pt. 333) pg. 385.

Finally, it was submitted for the Respondents that the Appellants’ claim for interest at bank rate from 1977 to 1996 based on Exhibit D, D1 and MM is a new and fresh issue as it was not the basis of the Appellants’ claim at the trial Court. They (Respondents) noted that the Appellants cannot raise a new issue on appeal except with leave of Court which was neither sought nor obtained.

Reference was made to the case of Bamikole v. Oladele (2011) All FWLR (Pt. 562) pg. 1699. Respondents urged us to uphold the judgment of the trial Court.

Resolution of Sole Issue
By paragraph 9 (b) of the Appellants’ Amended Statement or claim, the Appellants averred that:
(b) interest at Bank Rate from 1977-1996= N30,000,000.00.
At the hearing, the plaintiffs shall rely upon and hereby plead the interest computations made by the Central Bank of Nigeria or any reputed Commercial Bank at the rate prevailing at all material times from 1977 to 1996 …

The Appellants have the burden of establishing the rate of interest on which it predicated its computation of the amount owed to it. Unfortunately in the instant case, there is no whit, iota, scintilla or shred of evidence on the rate at which the interest supposedly claimed by the Appellants was calculated.
It is settled law that the burden of proof in an action lies on the party who would fail if no evidence at all were given on either side, in the instant case the burden of establishing interest rate on the Appellants was not discharged by the Appellants. See Section 131, Evidence Act 2011. Kwasalaba v. Okonkwo (1992) 1 NWLR (Pt. 218) 407; Umeojiako v. Ezenamuo (1990) 1 NWLR (pt. 126) 252 at 267; REO Enterprises (Nig) Ltd. v. Nwosu (2002) 11 WRN 16 at 33.

In the instant case, distinct and separate from the fact that the Appellants did not specifically plead the applicable interest rate intended to rely on in their computations, none of their witnesses testified to the said interest rate or how they arrived at the amount of N30,000,000.00 (Thirty Million Naira) only.

Indeed, Exhibit D1 and MM now sought to be relied upon in this appeal were tendered for a purpose different from the fresh/new claim of pre-judgment interest rate. The viva voce evidence of PW1 on the point is opposite.
“The entitlement of our community in respect of the land is N10.8 million which we are claiming. I also claim interest of 12% after judgment until payment is made”.

​Put in another way, the Appellants’ claim for Thirty Million Naira pre-judgment interest was not demonstrated by credible evidence. For the umpteenth time, I must say that a trial is not an investigation and investigation is not the function of a Court. The function of a Court is to examine and decide on evidence that has been demonstrated and tested by the parties.

In the circumstance, the learned trial judge was right to have held that “They claim interest at bank rate from 1977 to 1996. No evidence was given of this, particularly as to what the Bank rate is. I find it difficult in acceding to that”.

The sole issue in their appeal is resolved against the Appellants. Having resolved the sole issue against the Appellants, the appeal lacks merit and it is dismissed.

Finally having dismissed the Appellants appeal, I do not consider it necessary to consider the 4th Respondent’s Notice of Intention to vary/affirm judgment…”

Parties to this appeal are to bear their respective costs.

MUHAMMED LAWAL SHUAIBU, J.C.A.: I was obliged before now with copies of the lead judgments of my learned brother, Mojeed A. Owoade, J.C.A., just delivered. I agree entirely with the reasoning and conclusion that the consolidated appeal is bereft of any merit and ought to be dismissed.

The bone of contention in the consolidated appeal is whether the appellants are entitled to N30 Million pre-judgment interest in the circumstance of the case. An award of interest is generally governed by common law principles and practices. Interest is either awarded as of right or where there is a power conferred by the statute to do so in the exercise of the Court’s discretion.

In the instant case, the appellants’ claim of pre-judgment interest were predicated on Exhibits D1 and MM annexed to schedule of payment made pursuant to the Public Land Acquisition (Miscellaneous Provisions) Decree, 1976.

By virtue of Sections 131, 132 and 133 of the Evidence Act, whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist. The appellants having claimed the N30 Million interest must prove the existence of such facts. Also having relied on documentary evidence, they were duty bound to testify to its contents. Where, however, such documents involves mathematical calculations, how the figures were arrived at must be demonstrated in open Court. Thus, it is not the duty of the Court to sort out the exhibits, figures and do calculations in chambers to arrive at a figure to be given in judgment. See ANDREW V. INEC (2018) 9 NWLR (prt. 1625) 507.

I too endorse the judgment of the lower Court to the effect that there was dire need for evidence as to what the Bank rate was and the absence of which disentitled the appellants judgments in their favour. The appeals lacks merit and they are accordingly dismissed.

ADEMOLA SAMUEL BOLA, J.C.A.: I have had the privilege of reading the draft of the judgment just delivered by my Brother, MOJEED ADEKUNLE OWOADE, J.C.A.

I am in agreement with reasons and conclusion reached therein. I have nothing to add.

​I abide by his decision and conclusion.

Appearances:

Mba E. Ukweni SAN with Magaret Orji, Esq. For Appellant(s)

B. U. UKO, Esq. – For 1st and 2nd Respondents

3rd Respondent’s counsel was served through phone call but absent.

4th Respondent’s counsel was served through phone call but absent. For Respondent(s)