Sani Abacha Foundation For Peace And Unity & Ors. V. United Bank For Africa Plc (2010)

LAWGLOBAL HUB Lead Judgment Report

G.A. OGUNTADE, J.S.C.

The appellants were the plaintiffs at the High Court of the Federal Capital Territory, Abuja where they claimed against the respondents as follows:

“1. The sum of N25,300,000.00 (Twenty-five million, three hundred thousand Naira only) being money wrongfully and/or negligently “transferred” from the Plaintiffs’ Account No.201078886 with the ABUJA BRANCH of the Defendant bank.

2. Further or in the alternative, the plaintiffs claim the said sum as a debt which debt the defendant has failed to pay despite repeated demands.
3. In the further alternative, the plaintiffs claim the said sum as their money converted by the defendant.
4. Further, or in the alternative, the plaintiffs claim the said sum as money had and received by the Defendants to the Plaintiffs’ use.
5. A consecutive and accumulative claim of interest on the said at the rate 21% per annum from 7/7/98 until payment.”

The parties filed and exchanged pleadings. On 8/3/2000, Saleh C. J gave judgment in favour of plaintiffs/appellants for N25.3m. The judgment debt was to attract interest at the rate of 21% from 7/7/98 until payment of the judgment debt.

The defendant was dissatisfied with the judgment. It brought an appeal before the Court of Appeal sitting at Abuja (hereinafter referred to as the court below). The plaintiff also brought a cross-appeal. It is however relevant for the purpose of this appeal to consider only the result of the appeal by the defendant.

The court below affirmed the judgment of the trial court on the principal claim but allowed the appeal on interest. It set aside the said award of 21% interest. The plaintiffs were dissatisfied with that aspect of the judgment of the court below which set aside the award of 21% interest by the trial court. In the appellants’ brief filed, the single issue for determination was identified as the following:

“Whether the Court of Appeal was right in its finding the ‘There is no iota of evidence adduced by the plaintiff/Respondent in support of the rate of interest pleaded.’”

The respondent’ counsel in his brief adopted the issue for determination as formulated by the appellant.

The issue for determination in this appeal is easy to resolve in the light of the evidence proferred at the trial Court and the argument of counsel before this Court.

The relevant facts in a nutshell are these:

The defendant was a banker to the plaintiffs. On 7-7-98, it was discovered that the defendant without authority transferred the sum of N25.3m. out of the plaintiffs’ account. The plaintiffs brought the suit at the trial court to recover the said amount. Judgment was given in their favour. The trial court however awarded to plaintiffs interest on the judgment debt at the rate of 21 per cent from 7-7-98 until payment. The court below, as stated earlier, found that there was no basis for the award of interest at the rate of 21%. This is the simple issue to be resolved in this appeal.

Now at page 173 of the record of proceedings, the court below per Muntaka- Coomassie J.C.A. (as he then was) reasoned thus:

“I have carefully gone through the pleadings and the evidence adduced in proof there of before the lower court and I found as a fact that the rate of interest of 21% per annum was pleaded in paragraph 26(4) of the statement of claim but same was vehemently denied in paragraph 25 of the statement of defence which placed the onus of proof squarely on the plaintiffs/respondents. See Section 137 of the Evidence Act. However, there is no iota of evidence adduced by the plaintiff/respondents in support of the rate of interest pleaded. Pleadings are mere averment and it requires evidence on the part of the plaintiffs to prove the facts pleaded. Any pleaded fact, it goes without saying, ‘that was not proved or supported by evidence is deemed abandoned. See AJUWON V AKANNI (1993) 12 SCNJ 32; HYACINTH NZERIBE V. DAVE ENGINEERING CO. LTD (1994) 9 SCNJ 197.

It is true that the prevailing rate of interest was 21% per annum as submitted by the respondents counsel, where is the evidence to that effect on the record to support the claim. In the case of U.B.N V. SPOK LTD. (Supra) this court had stated the legal position as follows:-