CFAO PLC VS MBAH KALU IBOM

CORAM

PARTIES

CFAO PLC APPELLANTS

MBAH KALU IBOM(Trading under the name and Style As KIMSE enterprises) RESPONDENTS

AREA(S) OF LAW

SUMMARY OF FACTS

The Claimant/Respondent as a customer of the Defendant/Appellant commenced this action in the High Court in Calabar, claiming a declaration that the Defendant/Appellant committed fraud in the course of their transaction to the tune of N5, 943,991.46 (Five Million, Nine Hundred and Forty Three Thousand, Nine Hundred and Ninety One Thousand and Forty Six Kobo and interest thereon. At the conclusion of the trial, judgment was entered against the Defendant/Appellant which is the premise of the instant appeal.

HELD

Appeal Succeeds.

ISSUES

Whether the learned trial judge was right when he held that the respondent clearly and fully proved or established his case against the appellant?

RATIONES DECIDENDI

DOCUMENTARY EVIDENCE – DUTY OF A PARTY INTENDING TO RELY ON A DOCUMENT IN PROOF OF HIS CASE.

‘‘In Nwaga v Registered Trustees Recreation Club (2004) FWLR (Pt 190) 1360, 1380-1381, the court put the matter in this trenchant manner:
It is settled law that a party intending to rely on a document in proof of his case has a duty to specifically relate such document to the aspect of the case in respect of which the document is being produced in evidence. The Court cannot assume the responsibility for relating each of a bundle of documents to the various aspects of the case on behalf of a party when the party has not done…
According to the court, a Judge who resorts to doing so could be accused
of descending into the arena.’’ PER C.C NWEZE, J.C.A.

OFFENCE OF FRAUD – DUTY OF A PARTY ALLEGING THE OFFENCE OF FRAUD

“A person alleging fraud is not only required to make the allegation in his pleadings but must set out particulars of facts establishing the alleged fraud, so that the defendant goes into court prepared to meet them, Olufumise v Falana[1990] 3 NWLR (pt.136) 1; UAC v Taylor (1936) 2 WACA 170; Usenfowokan v Idowu(1969) NMLR 977; Ntuks v M.P.A [2007] 13 NWLR (pt.1051) 332; Fabunmi v. Agbe[1985] 1 NWLR (pt. 2) 299, 319; Ojibah v. Ojibah[1991] 5 NWLR (pt.191) 296, 309-310.” PER C.C NWEZE, J.C.A.

STANDARD OF PROOF OF AN ALLEGATION OF FRAUD – THE STANDARD OF PROOF OF AN ALLEGATION OF FRAUD IS BEYOND REASONABLE DOUBT

“Pleading fraud is one thing. Its proof is an entirely, different thing altogether for it is settled that a party who intends to prove an allegation of fraud must do so beyond reasonable doubt. More importantly, before he can be allowed to do prove it, he must have set it down specifically in his pleading, Akpunonu v Beakart Overseas and Ors(2000) LPELR -390 (SC) 10, B-C. Being a crime, its proof its beyond reasonable doubt, Ogundele and Anor v Agiri and Anor(2009) LPELR -2328 (SC) 31, C-D; Babatunde and Anor v Bank of the North Ltd and Ors(2011) LPELR -8249 (SC) 22-23, G-A; Faturoti v Agbeke[1991] 5 NWLR (pt 189)1, 13.” PER C.C NWEZE, J.C.A.

PROOF OF FRAUD – A PARTY PLEADING FRAUD MUST ESTABLISH THAT HE HAD BEEN MISLED BY THE FRAUDULENT STATEMENT MADE.

“By pleading fraud, the respondent cast upon himself the burden of establishing by evidence that he has been misled by the said statement; and that proof must be founded on a proof of fraud, Derry v Peek (1889) 14 AC 337; (1886 – 90) All ER; Alhaji Abdallah Maradi v. Alhaji Sanda(1958) WRNLR 172.” Just like fraud must be distinctly alleged, it must be, distinctly, proved. It is, thus, impermissible to infer fraud from the facts, per Iguh JSC in Onamade v ACB Ltd [1997] 1 NWLR (pt 480) 123, 142.” PER C.C NWEZE, J.C.A.

PROOF OF THE OFFENCE OF FRAUD – THE OFFENCE OF FRAUD HAS TO BE PLEADED AND ESTABLISHED IN EVIDENCE.

“It has been, tolerably, settled that fraud has to be pleaded with particularity. More, importantly, it has to be established in evidence.” PER C.C NWEZE, J.C.A.

EXAMINATION OF DOCUMENTS- THE COURT CAN ONLY ACT ON EVIDENCE EXPOSED AND CANVASSED IN COURT.

‘‘In Ivienagbor v. Bazuaye [1999] 9 NWLR (pt 620) 552; (1999) 6 SCNJ 235, 243 Uwaifo JSC, speaking for the Supreme Court, intoned magisterially:

In the same way, a court is not entitled to substitute its own views for matters in contention in the absence of evidence: see, Owe v. Oshinbanjo (1965) 1 All NLR 72 at 75; Bornu Holding Co. Ltd. v. Alhaji Hassan Bogoco (1971) I All NLR 324 at 333. The type of evidence a court can act on is the evidence which was exposed and canvassed in court. A judge cannot by examining documents outside court act on what he considers he has discovered on an issue when that was not supported by evidence or was not brought to the notice of the parties to be agitated in the usual adversarial procedure. In Alhaji Onibudo & Orsv Alhaji Akibu & Ors 5(1982) 7 SC 60 at 62, Bello JSC (later CJN) observed as follows:
‘It needs to be emphasized that the duty of a court is to decide between the parties on the basis of what has been demonstrated, canvassed and argued in court. It is not the duty of a court to do cloistered justice by making an inquiry into the case outside court, even if such inquiry is limited to examination of documents when the documents had not been examined in court and their examination out of court disclosed matters that had not been brought out and exposed to test in court.’’ PER C.C NWEZE, J.C.A.

CONSTITUENT OF FRAUDULENT ACTION –A FRAUDULENT ACTION OR CONDUCT ENTAILS DECEIT

“An offence is said to be committed fraudulently… if the action or conduct is a deceit to make, obtain or procure money illegally. By the fraudulent action or conduct, the accused deceives his victim by what he does not really have. In one word, he is an impostor.” PER C.C NWEZE, J.C.A.

BREACH OF FAIR HEARING – IT IS AN INFRACTION TO FAIR HEARING FOR THE COURT TO DO IN CHAMBERS WHAT A PARTY HAS NOT DONE IN ADVANCEMENT OF HIS CASE IN THE OPEN COURT

‘‘In aid Jalingo v Nyame(1992) 3 NWLR (pt 231) 538 where it was emphasized that “…it is an infraction to fair hearing for the court to do in Chambers what a party has not himself done in advancement of his case in the open court.’’ PER C.C NWEZE, J.C.A.

EXAMINATION OF DOCUMENTS OUTSIDE THE COURT ROOM – WHETHER A JUDGE IS PERMITTED TO EMBARK ON INQUISITORIAL EXAMINATION OF DOCUMENTS OUTSIDE THE COURT ROOM

“A Judge is not permitted to embark on an inquisitorial examination of documents outside the court room. Worse still, he is not allowed to act on what he discovered in such a document in relation to an issue- when that was not supported by evidence or was not brought to the notice of the parties to be agitated in the usual adversarial procedure.” PER C.C NWEZE, J.C.A.

FRAUDULENT ACTION – MEANING OF FRAUDULENT ACTION

“Fraudulent action or conduct conveys an element of deceit to obtain some advantage for the owner of the fraudulent action or conduct or another person or to cause loss to any other person. In fraud, there must be a deceit or an intention to deceive flowing from the fraudulent action or conduct to the victim of that action or conduct, citing Kettlewell v Watson (1882) 21 Ch. D 685, 685; R. v Reigels(1932) 11 NLR 33; Welham v DPP(1960) 44 Cr. App. R. 124; R v Odiakosa (1944) 10 WACA 247; R. v Bassey (1931) 22 Cr. App. R.160.” PER C.C NWEZE, J.C.A.

CONTENT OF PLEADING – A PLEADING MUST CONTAIN PRECISE ALLEGATIONS OF FACTS WITH ALL NECESSARY PARTICULARS

‘‘A 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, Lawrence v Lord Norreys(1890) 15 App. Cas. 210, 227. Thus, it must be distinctly alleged, with all necessary particulars, and distinctly proved, Davey v. Garrett (1878) 7 Ch.D. 473, 489; Boyse v.Rossborough 6H.L.Cas. 481, 489.’’ PER C.C NWEZE, J.C.A.

PROOF BEYOND REASONABLE DOUBT – PROOF BEYOND REASONABLE DOUBT IMPOSES A BURDEN ON THE PARTY ALLEGING CRIME TO ESTABLISH ALL MATERIAL INGREDIENTS OF THE OFFENCE TO THE SATISFACTION OF THE COURT

‘‘The phrase “proof beyond reasonable doubt” has assumed the status of a term of art. It imposes a burden on the party who alleges a crime [just like a prosecutor in a criminal, trial] to establish his case to the hilt. This means that all the material ingredients of the offence must be established to the satisfaction of the court, Woolmington v. D.P.P. (1935) All ER(Reprint) 1.’’ PER C.C NWEZE, J.C.A.

CASES CITED

STATUTES REFERRED TO

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