"In arriving at how the evidence placed before a Court preponderates, the Court does not search for mathematical exactitude. Undoubtedly, if the Lower Court had evaluated the evidence it would have been apparent that the Respondent did not pass any title in the land to the Appellant. Indeed, the evidence is consistent with the fact that the Respondent has no title to the land and that having been paid the purchase price, he never put the Appellant into possession in the presence of witnesses and that the land was in actual possession and occupation of someone else. It is trite law that a party who has paid money to another person for a consideration that has totally failed under a contract is entitled to claim the money back: NWAOLISAH vs. NWABUFOH (2011) LPELR (2115) 1 at 49, UKUTA vs. ALLIANCE INTERNATIONAL (NIG) LTD (1992) 8 NWLR (PT 259) 374, FIRST BANK vs. AFRICAN PETROLEUM (1996) 4 NWLR (PT 443) 438 and FIRST BANK vs. OZOKWERE (2006) 4 NWLR (PT 970) 422. Accordingly, the evidence establishes the Appellant's entitlement to a refund of the sum of N7,000.000.00 which he paid as purchase price for the two plots of land, the consideration for which the payment was made to the Respondent having totally failed. The Lower Court was consequently wrong when it failed to enter judgment for the Appellant."
Per OGAKWU, J.C.A. in CHIEF GOODWILL ATIEMORA-MUSA AGBONENI v. CHIEF FATAI ALAKIU (2018) LPELR-44807(CA)
"The Appellant hankers after the award of the pre-judgment and post-judgment interest he claimed. There are two types of interest usually awarded by a Court namely: pre-judgment interest otherwise known as 'interest as of right' and post-judgment interest otherwise known as 'discretionary interest', which a Court is allowed by the Rules of Court to award to a successful party at the end of the trial, at a rate fixed by the Rules. Pre-judgment interest must be claimed by a plaintiff in the writ of summons and statement of claim and evidence subsequently adduced in proof of it, failing which it will not be awarded by a Court. The award of pre-judgment interest can be made where it is contemplated in an agreement between the parties, under a mercantile custom and under the principle of equity such as breach of fiduciary relationship. See EKWUNIFE vs. WAYNE (WA) LTD (1989) 5 NWLR (PT 122) 422 at 445, IDAKULA vs. RICHARDS (2001) 1 NWLR (PT 693) 111 at 122, 124B-D and 124H-125A, SANI ABACHA FOUNDATION vs. UBA PLC (2010)1NACLR 264 at 272, BERENDE vs. USMAN (2005) 14 NWLR (PT 944) 1 and BERLIET NIGERIA LTD vs. KACHALLA (1999) 9 NWLR (PT 420) 478. The Appellant claimed interest on the sum of N7, 000, 000.00 at 10% per annum from November 2004 until judgment is delivered. The law remains firmly established that a claimant who claims interest must not only claim it on the writ of summons and statement of claim, but must also plead the facts and the grounds upon which the claim for interest at the rate claimed is based. See AZUMI vs. PAN AFRICAN BANK LTD (1996) 8 NWLR (PT 467) 462 at 472 and OBANTA COMMUNITY BANK LTD vs. AJAYI (2001) 33 WRN 119 at 128. The entitlement to interest must also be established by credible evidence: REO ENTERPRISES vs. NWOSU (2002) 11 WRN 16 at 33 and R.C.C. (NIG) LTD vs. R.P.C. LTD (2005) 10 NWLR (PT 934) 615 at 640-641. Not only did the Appellant not plead the facts and grounds upon which the claim for pre-judgment interest at the rate claimed is predicated, there is also no iota, whit or scintilla of evidence in proof of pre-judgment interest at the rate claimed. As a consequence, the Appellant is not entitled to the award of pre-judgment interest. The Appellant further claimed post-judgment interest at the rate of 10% until final liquidation of the debt. I have already stated that post-judgment interest or discretionary interest is that interest which a Court is allowed by the Rules of Court to award to a successful party at the end of the trial at a rate fixed by the Rules. In the course of this judgment I have found that the Appellant is entitled to the sum of N7,000,000.00 which he paid to the Respondent for a consideration that totally failed. The power of a Court to award post-judgment interest is usually exercised when the Court has pronounced its judgment in any claim. See EBERE vs. ABIOYE (2005) 41 WRN 1 at 45. In exercise of discretion pursuant to Order 35 Rule 4 of the High Court of Lagos State (Civil Procedure) Rules, 2012, the Appellant is entitled to interest on the judgment sum at the rate of 10% per annum until final liquidation of the judgment sum. The post-judgment interest is to run from 3rd March 2016, the date of the judgment of the Lower Court, since the Appellant was entitled to judgment being entered in his favour as at that date."
Per OGAKWU, J.C.A. in CHIEF GOODWILL ATIEMORA-MUSA AGBONENI v. CHIEF FATAI ALAKIU (2018) LPELR-44807(CA)
