UMONAM NIGERIA LTD. & ANOR v. SAMUEL GREGORY EFFIONG
(2012)LCN/5713(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 5th day of December, 2012
CA/C/160/2008(R2)
RATIO
COURT: DESIRE OF THE COURT
The court of all times is desirous of doing justice to litigants except where of course the court lacks jurisdiction to so do. PER UZO I. NDUKWE-ANYANWU, J.C.A.
ACTION: NATURE OF FRAUD
In Fabunmi v. Agbe (1985) 1 NWLR (Pt.2) 299 Obaseki, JSC held at page 319 paragraph “C” that:
“Fraud is a serious crime and in civil matters, the particulars must be pleaded and proved strictly.”
See also Ojibah v. Ojibah (1991) 5 NWLR (Pt.191) 296 at 309 paragraph “H” to page 310 paragraph “A” to “E” per Nnaemeka-Agu, JSC to wit:
“I have already set out the pleading in paragraph 5 of the statement of defence. It simply denied that it was a true and correct document, and gave notice that the respondent would contest its legality at the trial. I have my doubts whether this could amount to a pleading of fraud. In saying so, I associate myself with the observation of Wills, J., in Ex parte Watson 21 Q.B.D. 301 where he stated:
“Fraud, in my opinion is a term that should be reserved for something dishonest and morally wrong, and much mischief is, I think, done, as well as much pain inflicted, by its use where “illegality” and “illegal” are the really appropriate expressions.”
See also Boyse v. Rossborough 6 H.L. Cas. 481, at p.49, per Cranworth C. In my view fraud carries far much wider implications than impugning the truth or correctness of a document. At common law, its foundation is deceit of which the intention to mislead and a false representation are material. In equity it is, in sum, infraction of fair dealing and its consequences upon the person aggrieved are of paramount importance.
Although the word “fraud” need not be used, one of the most fundamental rules and about the pleading of fraud is that the pleading must contain precise but full allegations of facts and circumstances, with all necessary particulars, leading to the reasonable inference that the fraud was the cause of the loss complained of: See Lawrence v. Lord Norreys (1890) 15 App. Cas. 210, at p.227. The law requires that fraud must be distinctly alleged, with all necessary particulars, and distinctly proved: Davey v. Garrett (1878) 7 Ch.D. 473, at p.489. In New PortDryDock & Engineering Co. v. Paynter (1886) 34 Ch.D. 88 it was held that to plead that “all the accounts rendered to the plaintiff are untrue” is no pleading of fraud. Also in Patrick v. Lyon (1933) Ch.786, it was held that to say that a person contravened Section 265 of the Companies Act, 1929, was no allegation of fraud. PER JOSEPH TINE TUR, J.C.A.
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
Between
1. UMONAM NIGERIA LTD.
2. REV. CHARLES AKPAN UMOH – Appellant(s)
AND
SAMUEL GREGORY EFFIONG – Respondent(s)
UZO I. NDUKWE-ANYANWU, J.C.A.: (Delivering the leading Judgment): This is a motion on notice filed on 12th April, 2012 brought pursuant to Order 7 rule 10(1) and (2), Order 4 rule 2 Court of Appeal Rules, 2011 and under the inherent jurisdiction of the Court. The Appellants/Applicants are praying for the following orders;
“(1) An order for leave to extend time, within which Applicants may file Appellants’ Brief struck out on 14th December, 2011.
(2) An order for leave to file Appellants’ Brief herein marked Exhibit “A” and to deem same as duly filed and served on payment of prescribed fees.
(3) An order for leave to adduce Further evidence (documentary) showing Plan No.IN 2323 and Plan No.2326 obtained from the Achieves after judgment in the Court below and which fraudulently substituted the former plan for the latter herein exhibited and marked “B” and “C” respectively.
(4) An order for leave to argue a point of law namely, the said substitution by the respondent which was not taken at the Court below.
Any further or other order(s) as the Court may deem fit to make in the circumstance.
In support of this motion is a 16 paragraphs affidavit deposed to by one Rev. Charles Akpan Umoh. By the order of this court, the Appellants/applicants filed a Written Address on 7th May 2012 and a reply on 28th May, 2012. In response the Respondent also filed his Respondent’s address on 21st May, 2012.
The Appellants/Applicants articulated 4 issues for determination as follows:
(i) Whether this court can grant an order for extension of time to file Appellants’ Brief and to deem same as properly filed on payment of prescribed fees?
(ii) Whether this court can receive Further Evidence in the circumstances of this case where the respondent fraudulently substituted a different plan for the plan of the land in dispute with the sole purpose of ever reaching the applicants?
(iii) Whether in the circumstances of this case, this court can allow the applicants to argue a point of law regarding issue of fraudulent substitution which was not argued in the Court below?
(iv) Whether the respondent can be heard to oppose this application in the absence of his not filing a Counter-Affidavit?
I will deal with issues 2 & 3 together first and thereafter issues 1 & 4 together.
ISSUE 2 & 3
The Appellants/Applicants’ learned counsel submitted that Order 4 Rule 2 Court of Appeal Rules 2011 empowers the court to receive further evidence on special grounds. In this case, the further evidence relates to fraud involving the mutilation of official records.
Counsel argued that the general powers of the court to receive further evidence in terms of the above rules can further be found in decided cases as follows:
(i) The evidence sought to be adduced should be such that could not have been obtained with reasonable care and diligence for use at the trial. See Peterside V. I. M. B. (Nig) Ltd. (1993) 2 NWLR (pt. 278) 72.
(ii) If the further evidence is admitted, it would have an important but not necessarily, crucial effect. See Ladd v. Marshall (1954) 3 A.E.R. 511.
(iii) If the further evidence sought to be tendered is such that it is apparently credible in the sense that it is capable of being delivered even if it may not be incontrovertible. (See Obasi v. Onwuka (1987) 3 NWLR (pt.61) 364.
(iv) If the evidence sought to be adduced could have influenced the judgment at the lower court in favour of the applicants if it had been available at the trial court. (See Fawehinmi v. The State (1990) 5 NWLR (pt.148) 42: and;
(v) The evidence should be material and weighty even it not conclusive. (See Nwokoro v. Nwosu (1990) 6 NWLR (pt. 129) 679.
Counsel argues that plan No IN 2326 and IN 2323 were fraudulently substituted. See Oyibah v. Oyibah (1991) 5 NWLR pt 191 pg 296.
The learned counsel also submitted that a point of law not canvassed in the lower court can be raised as a fresh issue on appeal. The court would allow the question to be raised in order to prevent an obvious miscarriage or failure of justice. See Direct On P.C. Ltd. v. SOF Tech. Ltd. (2011) 10 NWLR pt 1256 pg 442.
Counsel listed the special circumstances or conditions under which a point of law not specifically canvassed at the trial may be allowed to be raised on appeal for the first time as follows.
(a) The point of law raised must be substantial;
(b) No further evidence would be adduced which will affect the new point; and
(c) The refusal to grant leave to argue the new point will occasion miscarriage of justice. See Direct On PC Ltd (supra) 445 Held No.4
Counsel urged the court to resolve these issues in favour of the Appellants/Applicants and grant this application.
Issue 1 & 4 Appellants/Applicants counsel submitted that the court can grant extension of time to file Appellants brief out of time and deem same as properly filed and served. Counsel urged the court to grant his prayers.
The Respondent’s counsel submitted that the Appellants/Applicants prayers cannot be granted for the following reasons. The Appellants/ Applicants have filed this application severally and in all occasions they were withdrawn and struck out by the court. The learned counsel also argued that the court never struck out the Appellants/applicants’ brief because it was never properly filed.
Further, the Respondent asked; which of the plans is a forgery IN 2623 or IN 2323? The land area in the plan proposed to be tendered as authentic is smaller than the one the subject matter of this suit. The allegation of forgery in a civil suit required proof beyond reasonable doubt as in criminal cases. See S. 135(1) Evidence Act 2011, Oseni v. State (2012) 5 NWLR pt 1293 Pg 351. The Appellants/Applicants have not exhibited the copy of the exhibits as tendered and marked, and to show how it was that same exhibit that was forged. Counsel submitted that these are the tests the said alleged fresh evidence must pass before it can be admitted, if it is really fresh evidence. British Airways PLC v. Amadi (2012) 2 NWLR pt 1283 pg 21, Uzodinma v. Izunaso No.2 (2011) 17 NWLR pt 1275 pg 30.
Counsel urged the court to hold that this application does not qualify as one that could be granted leave to adduce fresh evidence.
The Appellants/Applicants have prayed the court to grant them leave to raise fresh issues on appeal. These fresh issues are to, supposedly bring in an authentic site plan to replace the one fraudulently obtained and tendered. This new obtained plan was neither exhibited in the motion seeking to bring in the said plan. What evidence can now persuade the court to grant this prayer? Apart from what was deposed to in the affidavit, no one knows what the Appellants/Applicants pray to bring in as fresh evidence. How would it affect the appeal filed in this court? A party cannot be allowed to ambush the other party in any proceedings.
The Respondent in the trial court claimed the following reliefs.
(a) An order of Court ejecting the Defendants from the Plaintiff’s property lying situate at and known as No. 149 Aka Road, Uyo.
(b) The sum of N500,000 (Five Hundred Thousand Naira) only per annum with effect from 1992 until possession being value for use and occupation of the said property by the Defendants.
The claim is not one on title that the plan is a necessity. The claim is for trespass. Whether the land is big or small, whether there are two buildings or one on the said plot are irrelevant to the just adjudication of this appeal.
The crux of the Respondent’s suit in the High Court is for trespass. I don’t see any relevance in tendering a supposedly more authentic plan to prove same. It is not whether the building belongs to the Appellants/Applicants or to the Respondent that is in issue. There is no question on the ownership of the property.
I don’t see the relevance of the said authentic plan to this appeal.
Issues 2&3 are therefore resolve against the Appellants/Applicants.
In most cases, the court is always minded to grant leave to a deserving Appellant to file his brief out of time. The reason is for an Appellant to be given every opportunity to air his grievance. The court of all times is desirous of doing justice to litigants except where of course the court lacks jurisdiction to so do. Issue 1 succeeds in favour of the Appellants/Applicants. Leave is hereby granted and time is extended to today for the Appellants/Applicants to file the Appellants brief. The Appellants brief filed on 23rd September, 2009 is deemed properly filed and served today.
The appellant/Applicants prayer to file fresh issue and argue same in the appeal is refused. Cost of N50,000 to the Respondent against the Applicants.
MOHAMMED LAWAL GARBA, J.C.A.: I agree with the views and conclusions by my learned brother U. I. Ndukwe-Anyanwu, J.C.A., in the lead ruling just delivered, and a draft copy of which I have read before today. The consequential orders made therein are adopted by me.
JOSEPH TINE TUR, J.C.A.: I have read the ruling of my Lord, Uzo I. Ndukwe-Anyanwu, JCA and I concur. I shall add these few comments of mine:
Issue (ii), (iii) and (iv) set down for determination by the appellants/applicants are anchored on fraud, namely, that the respondent fraudulently substituted a different plan for the plan of the land in dispute with the sole purpose of over reaching the appellants/applicants.
In Fabunmi v. Agbe (1985) 1 NWLR (Pt.2) 299 Obaseki, JSC held at page 319 paragraph “C” that:
“Fraud is a serious crime and in civil matters, the particulars must be pleaded and proved strictly.”
See also Ojibah v. Ojibah (1991) 5 NWLR (Pt.191) 296 at 309 paragraph “H” to page 310 paragraph “A” to “E” per Nnaemeka-Agu, JSC to wit:
“I have already set out the pleading in paragraph 5 of the statement of defence. It simply denied that it was a true and correct document, and gave notice that the respondent would contest its legality at the trial. I have my doubts whether this could amount to a pleading of fraud. In saying so, I associate myself with the observation of Wills, J., in Ex parte Watson 21 Q.B.D. 301 where he stated:
“Fraud, in my opinion is a term that should be reserved for something dishonest and morally wrong, and much mischief is, I think, done, as well as much pain inflicted, by its use where “illegality” and “illegal” are the really appropriate expressions.”
See also Boyse v. Rossborough 6 H.L. Cas. 481, at p.49, per Cranworth C. In my view fraud carries far much wider implications than impugning the truth or correctness of a document. At common law, its foundation is deceit of which the intention to mislead and a false representation are material. In equity it is, in sum, infraction of fair dealing and its consequences upon the person aggrieved are of paramount importance.
Although the word “fraud” need not be used, one of the most fundamental rules and about the pleading of fraud is that the pleading must contain precise but full allegations of facts and circumstances, with all necessary particulars, leading to the reasonable inference that the fraud was the cause of the loss complained of: See Lawrence v. Lord Norreys (1890) 15 App. Cas. 210, at p.227. The law requires that fraud must be distinctly alleged, with all necessary particulars, and distinctly proved: Davey v. Garrett (1878) 7 Ch.D. 473, at p.489. In New PortDryDock & Engineering Co. v. Paynter (1886) 34 Ch.D. 88 it was held that to plead that “all the accounts rendered to the plaintiff are untrue” is no pleading of fraud. Also in Patrick v. Lyon (1933) Ch.786, it was held that to say that a person contravened Section 265 of the Companies Act, 1929, was no allegation of fraud. So, in the instant case; to have pleaded in paragraph 5 of the statement of defence that Exhibit “A” “is not and cannot be a true and correct document” and give notice that its legality would be contested at the trial was no pleading of fraud. By the pleading the defendant did not assume the onus to prove anything. Rather, he put the plaintiff on notice as to what he (plaintiff) was required to prove.
Fraud is to be pleaded with particulars and proved not in the Court of Appeal but at the Court of trial. See Usen v. Bank of the North Ltd. (1965) 1 All NLR 244 at, 247; Okoli v. Morecab Finance (Nig.) Ltd. (2007) All FWLR (Pt.369) 1164 at 1182; Cole v. Folami (1990) 4 SCNJ 13.
“Fraud is an extrinsic, collateral act, which vitiates the most solemn proceedings of courts of justice. Lord Coke says it avoids all judicial acts, ecclesiastical or temporal”
per De Grey, C.J. in Duchess of Kingston’s Case (1775-1803) All E.R. Reprint 623 at 629.
I also see no merit in issues two, three and four. The application is dismissed.
Appearances
G. A. Udo Usoro Esq. and H. N. Usim Esq.For Appellant
AND
Njideka Nnaji (Mrs.)For Respondent
