An overview of Fraud in Civil Trial and Judgement in Nigeria is necessary because much comment and research has been done in the criminal aspect of it.
What is Fraud?
Fraud is an intentional perversion of truth for the purpose of inducing another person to part with some valuable thing belonging to him or to surrender a legal right. It covers the commission of crime.
In civil law, fraud includes acts, omissions and concealment by which an undue and unconscientious advantage is taken of another. See NAMMAGI VS. AKOTE (2021) 3 NWLR (PT. 1762) 70.
In the New Webster’s Dictionary of English Language, International Edition P.375 fraud includes someone who is not what he pretends he is. Fraud is a false representation by means of a statement or conduct made knowingly or recklessly in order to gain material advantage.
It causes injury the party deceived may claim damages in the tort of deceit.” Therefore, to be fraudulent is a simple deliberate deception intended to gain an advantage, see IFEGWU V. FEDERAL REPUBLIC OF NIGERIA (2001) 13 NWLR (PT. 729) 103
Mode of commencing an action based on allegation of fraud
A Court action for any claim which is based on an allegation of fraud must come before the Court by way of a writ of summons and not by way of a motion on notice.- HALID PHARMACEUTICALS LTD v. Solomon (2013) LPELR-22358(CA).
How fraud is proved
Fraud, whether in civil or criminal proceedings is a contentious issue requiring particulars and commanding a higher standard of proof, for which oral evidence will certainly be required.-OLURIN & ORS v. SANGOLANA & ORS (2021) LPELR-56280(CA).
Where a party has not made fraud the basis of his claim, the Court has no power to suo motu raise it.-AKERELE v. AKERELE (2021) LPELR-53984(CA)
How to plead and prove fraud
Now, to allege fraud is neither a tea party nor an all comer’s affairs. It is only for those with the hard facts and particulars of the fraud they allege. Thus, an allegation of fraud without its due particulars clearly stated is but a joke and a non starter.
It is of no moment and will be discountenanced by the Court. Fraud must not only be specifically pleaded with its particulars but must also be proved by cogent and credible evidence.
The law is that for an imputation of fraud to succeed, it must be pleaded with the utmost particularity for indeed no rule is more clearly established than that fraud must be distinctly alleged and proved and that it is not permissible to leave fraud to be inferred from the facts.
Whether an allegation of fraud must be specifically pleaded
In law, an allegation of fraud requires that the particulars of fraud be set out to confer any modicum of seriousness on such an allegation of fraud to warrant further enquiry into it by the Court below.
In other words, unless and until an allegation of fraud is expressly made and supported by its particulars it is a non starter as in law mere or bare or banal allegation of fraud, no matter how grave, is of no moment if it is not supported by the relevant particulars as required by law.
An allegation of fraud that is merely generic, vague and lacking in the specific and particulars is in law a non-starter and useless. See PDP V. INEC & Ors (2012) LPELR 9724 (SC).
In Highgrade Maritime Services Ltd V. First Bank of Nigeria Ltd (1991) 1 NWLR (Pt. 167) 290, where Wali JSC., had put it succinctly thus: “It is trite law that where fraud is alleged it must be specifically pleaded and particulars of the fraud given to enable the party defending the allegation understand the case he is facing and prepare his defence.
Effect of a contract or other transaction induced or tainted by fraud
Fraud vitiates even the most solemn of all transactions. In fact fraud vitiates everything even judgments and orders of the court. However, a contract or other transaction induced or tainted by fraud is not void but only voidable at the election of the party defrauded.
Until it is avoided the transaction is valid so that third parties without notice of the fraud may in the meantime acquire rights and interests in the matter which they may enforce against the party defrauded.
There must be an action to set aside the transaction induced or tainted by fraud and not one for a declaration that the whole transaction is null and void ab initio.-UGO v. OBIEKWE & ANOR (1989) LPELR-3319(SC).
Effect of consent induced by fraud
Consent induced by fraud or tricks is not a real consent- R v. Williams (1953) 1 QB 660.
Effect of a judgment that is tainted with fraud
A judgment that is obtained by or tainted with fraud cannot be used as basis for conferring jurisdiction in a court that has none. If a court has no jurisdiction to entertain a matter, no amount of successful case made out of fraud can resuscitate or rescue jurisdiction.
Once a court lacks jurisdiction, a party cannot use any statutory provision or common law principles to repair it because lack of jurisdiction is irreparable in law.
Proper manner of impeaching a judgment alleged to have been obtained by fraud
A Judgment obtained by fraud can be impeachable by means of an action instituted in a Court of first instance subject to the satisfaction of the following conditions:
- The fraud alleged must be exactly particularized
- The allegation must be established by strict proof
- A strong case must be shown
- The fraud must relate to matters which prima facie would be reason for setting aside the judgment if established and not to matters which are merely collaterall
- The fraud must have been discovered since the judgment complained of. See the case of- Olufunmise v. Falana (1990) 3 NWLR (pt. 136) 1
Procedure to be followed for the review of a judgment obtained by fraud
A review of a judgment obtained by fraud is possible. The way to do it is to file a fresh suit with the objective of establishing the fraud.
The pleading shall deal with nothing other than facts relating to the fraud. Evidence will then be led to establish the fraud. In that suit, the plaintiff must not raise any of the issues originally tried.
Effect of proof of fraud on a plea of limitation of action
There is also the law that fraud vitiates everything done under the shadow of the fraud. Even in a situation which the limitation law can be invoked, the fact that fraud, misrepresentation, deceit or absence of knowledge of the occurrence of the event which a Claimant seeks to protest, was pleaded and established, certainty operates against and defeat the plea or application of limitation law. See the case of Tropics Securities Ltd & Vs AMCN (2019) LPLER – 47275 (CA); Sifax Nig. Ltd & Ors Vs Migfo (Nig) Ltd & Anor (2018) LPELR – 49735 SC.
A party who predicates his case on fraud must supply particulars of the fraud in his pleading, see Ntuks v. NPA (2007) 13 NWLR (Pt. 1051) 392.
On the allegation of fraud, a person alleging fraud is not only required to make the allegation in his pleadings but must in the pleadings set out particulars of fact establishing the alleged fraud prima facie.
Duty of courts where fraud is alleged in civil cases
“It is settled also that Courts must be careful in the way they accept the use of the word “fraud” by litigants in proceedings before them. That the word “fraud”, is so elastic in meaning as to cover the commission of crime as well as incidents of mere impropriety. That it is often loosely used to cover both situations. That when an allegation of fraud is made, it would have to be supported by particulars.-OKOLI v. MORECAB FINANCE (NIG) LTD (2007) LPELR-2463(SC).
It is a well known fact that fraud is an element of crime, the proof of which must be beyond reasonable doubt, as is provided by Section 138 of the Evidence Act 2011.
Condition for an allegation of fraud to avail a defendant in a suit placed on the undefended list
On the aspect of fraud, it is not the law that mere mentioning of fraud under the Undefended List would automatically entice the Court to move the suit to the General Cause List for the hearing of evidence, oral or documentary. This is particularly so because, an allegation of fraud requires the particulars of fraud to be set out in order to confer some modicum of seriousness so as to warrant further enquiry into it by the Court.
In other words, unless and until an allegation of fraud is expressly made and supported by its particulars, it is a non-starter; as in law, mere or bare allegation of fraud, no matter how grave it is, is of no moment if it is not supported by the relevant particulars as required by law.
In the case of EZEKIEL OKOLI V. MORECAB FINANCE NIGERIA LIMITED (2007) LPELR-2463 (SC); opined that: “For an allegation of fraud to avail a Defendant in a suit placed under the Undefended List, it must be on a matter relevant to the case set out by the Plaintiff.
Whether Court would allow amendment for the purpose of adding a plea of fraud
It is the law that an allegation of fraud is a very grave one and is a very material element in the case of a party pleading. Such important matter should therefore be naturally expected to be alleged in the originating pleading. If it is sought to be introduced for the first time by amendment of the pleading the good faith of the application is called into question.
It has long been the universal practice, except in the most exceptional circumstances, not to allow amendment for the purpose of adding a plea of fraud where fraud (or I may add particulars of fraud) is not pleaded in the first instance. See BENTLY V. BLACK (1893) 9 TLR 580.
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