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This edition of Akintunde Esan’s Legal Illumination is for the sake of the victims of fraud, who has been cheated by unscrupulous and fraudulent persons and organisations including Banks in Nigeria.
By and large, a fraud can be a civil or criminal wrong. As a civil wrong or tort, it is an offense against the victim and the victim is entitled to sue the fraudster to circumvent the fraud or recover the money or asset lost to fraud with compensation. As criminal wrong, it is an offense against the State and the perpetrator or fraudster is liable to be prosecuted by the State and imprisoned if found guilty.
The focus of this edition of Akintunde Esan’s Legal Illumination is on fraud as a civil wrong and the civil remedies available for fraud under Nigerian civil law jurisprudence.
1. What is Fraud
Fraud is an intentional perversion of truth for the purposes of inducing another in reliance upon it to part with some valuable thing belonging to him or to surrender a legal right. It is something dishonestly and morally wrong.[1]
Fraud implies a wilful act on the part of anyone, whereby another is sought to be deprived, by illegal or inequitable means, of what he is entitled to. Fraud for the purposes of civil law includes acts, omissions and concealments by which an undue and unconscientious advantage is taken of another.[2]
Courts are careful in the way they accept the use of the word 'fraud' by litigants in proceedings before them. The word 'fraud' is so elastic in meaning as to cover the commission of crime as well as incidents of mere impropriety. It is often loosely used to cover both situations. It is not unusual to allege fraud in civil cases without imputing any crime.[3]
2. Types of Fraud
Some of the common types of fraud include:
· Credit and Debit Card Fraud
· Insurance Fraud
· Identity Fraud
· Charity Fraud
· Employee Fraud
· Accounting Fraud
· Email and Text Scams
· Phishing
· Banking Fraud
· Telemarketing Scams
· Contractor Fraud
· Payroll Fraud
· Internet Fraud
· Social media Fraud
· Website misdirection Fraud
· Work-from-homes scams
· Dating Scam
· Lottery Fraud
· Sweepstakes
· Check Fraud
· Pyramid Schemes
· Supplier Fraud
· Ponzi Scheme
· Corporate Fraud
· Advance fee Fraud
· Investment Fraud
· Foreign Business Offers
· Job Scam
· Auction Fraud
3. Presumption of Fraud
Fraud may be presumed from the nature of the bargain, the circumstances and condition of the parties contracting, weakness, one sided, extortion and advantage taken of that weakness on the other. Fraud in such cases does not mean deceit or circumvention; it means unconscionable use of the power arising out of the circumstances and condition of the parties.[4]
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[5].
4. Elements of Cause of Action of Fraud
The elements of a cause of action for fraud include false representation of a present or past fact made by the Fraudster/Defendant, action in reliance thereupon by the Fraud victim/Claimant, and damage resulting to the Claimant from such misrepresentation.[6]
5. Fraud in Connection with False Representation
It is firmly settled that, whenever a man makes a false statement which he does not actually and honestly believe to be true, that statement is, for purposes of civil liability, as fraudulent as if he had stated that which he did not know to be true, or knew or believed to be false[7].
Fraud is proved when it is shown that a false representation has been made by the representor[8]
(a) knowing, or
(b) without belief in its truth, or
(c) recklessly, careless whether it be true or false; the third case being but an instance of the second.
6. How to establish an Allegation of Fraud
Fraud where alleged requires a higher degree of probability in its proof, it must be pleaded with particulars adequately supplied, thus, it is trite law that charges of fraud or commission of other crimes or any fact showing illegality must be specifically pleaded[9]. In essence, fraud has to be pleaded with particularity and established in evidence.
Although the word "fraud" need not be used, one of the most fundamental rules 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.[10]
7. Statute of Limitation and Fraud
Now it has always been a principle of equity that no length of time is a bar to relief in the case of fraud, in the absence of laches on the part of the person defrauded. There is therefore, no room for the application of the Statute (of Limitation) in the case of concealed fraud, so long as the party defrauded remains in ignorance without any fault of his own[11].
8. Burden of Proof
Generally speaking where fraud is pleaded, the party doing so has a duty to prove it beyond reasonable doubt, irrespective of the fact that it is a civil proceeding; for fraud once alleged has to be proved beyond reasonable doubt.Section 135(1) and (2) of the Evidence Act provide:
(1) If the commission of a crime by any party to any proceeding is directly in issue in any proceeding civil or criminal it must be proved beyond reasonable doubt.
(2) the burden of proving that any person has been guilty of a crime or other wrongful act is subject to Section 139 of this Act, on the person who asserts it, whether the commission of such act is or is not directly in issue in the action[12].
9. Remedies for Fraud
The judicial remedies available to the victims of fraud include the following:
a) Claim for Declaratory Relief:
This is a request made to the Court of competent jurisdiction to declare an act as an illegality or a fraud.
b) Claim for Order of Restitution
There are several Criminal codes in Nigeria which provide for restitution to fraud victims such as the Advance Fee Fraud and Other Fraud Related Offences Act.[13] In a civil suit the Plaintiff or Claimant may claim for the restitution of the asset or the monetary value of the asset lost to fraud.
c) Injunction
This is an order of Court restraining the fraudster from continuing to commit the fraud.
d) Damages
In addition to an order of restitution and injunction, a successful Claimant is also entitled to claim damages. Damages is Money claimed by or ordered to be paid to a person as compensation for loss or injury he has suffered following a tort or a breach of contract or civil wrong.
Type of Damages
· Special Damages: Mathematical calculation of all expenses incurred e.g. medical expenses, solicitor’s fee and material or financial loss suffered as a result of the fraud.
· General Damages: Losses that cannot be mathematically calculated but estimated such as pain and suffering, loss of enjoyment of life, loss of expectation of life, loss of earning or future earning, injury to your dignity, nervous shock, trauma suffered from the fraudulent act.
· Aggravated Damages: this is awarded in addition to actual damages when the wrong doer acted with recklessness, malice or deceit, cruelty, fraud, insolence and disregard for the law. It is meant to punish/penalize the wrongdoer or make him an example to others.
e) Claim for Specific Performance
Specific performance is a court ordered remedy that requires precise fulfilment of a legal or contractual obligation when monetary damages are inappropriate or inadequate, as when sale of real estate or a rare article is involved[14].
A decree of specific performance is a form of relief that is purely equitable in origin and is one of the earliest examples of the maxim that equity acts in personam. The fundamental rule is that specific performance will not be decreed if there is an absolute remedy at law in answer to the Plaintiff's claim, that is to say, where the plaintiff would be adequately compensated by the common law remedy of damages[15]
Nevertheless, it is settled law that where a Plaintiff claims specific performance, or an injunction, the court has the power to award damages either in addition to or in lieu of specific performance or injunction, whether damages have also been specifically claimed or not[16]
f) Termination fraudulent Contract or Agreement.
One of the option available to a victim of a fraud is outright termination of the fraudulent Contract or Agreement. Where a Contract was fraudulently induced the defense of fraud would avail the Defendant in an action for breach of Contract.
10. Conclusion
Fortunately, it has always been a principle of equity that no length of time is a bar to relief in the case of fraud, in the absence of laches on the part of the person defrauded, so long as the party defrauded remains in ignorance without any fault of his own[17].
Thus, if you are a victim of a fraudulent business, scheme, promo, investment, property acquisition or contract, don’t just sit down and lament helplessly, seek the advice of a competent Legal Practitioner on how to recover your lost or swindled money or asset.
For further illumination on how to recover your lost or swindled money or asset, you are advised to contact Akintunde Esan for further illumination on your available recovery options.
HOW TO RECOVER MONEY OR ASSET LOST TO FRAUD IN NIGERIA is a legal illumination of AKINTUNDE ESAN known as The LEGAL ADVISER ONLINE. Akintunde Esan is the Managing Partner & Principal Consultant @ ASE OLODUMARE CHAMBERS (Legal Practitioners/Consultants & Chartered Mediators)
[1] Otukpo v. John & Anor (2012) LPELR-20619(SC) per Adekeye, J.S.C. (P.26, Paras. B-G)
[2] Green v. Nixon (1857) 23 Bear 530 at P 535; Prince Oil Ltd v. GTB Plc (2016) LPELR-40206(CA) Per Mustapha, J.C.A. (P. 6, Paras. A-B)
[3] Okoli v. Morecab Finance (Nig.) Ltd. (2007) ALL FWLR (Pt. 369) 1164 at 1191; Paras. F - G (SC)
[4] Okoli v. Morecab Finance (Nigeria) Ltd (2007) LPELR-2463(SC)Per Onu, J.S.C.(Pp.18-19,paras.G-B)
[5] Per Nnaemeka Agu, J.S.C. (P. 13, paras. A-C) Ojibah V. Ojibah (1991) LPELR-2374(SC)
[6] Bessoy Limited v. Honey Legon (NIG) Limited (2008) LPELR-8329(CA)Per Agbo, J. C. A. (Pp. 26-27, paras. D-A)
[7] Afegbai v. AG Edo State (2001) LPELR-193(SC) Per Iguh, JSC. (Pp.52-53, paras. B-E)
[8] Derry v. Peek (1889) 14 AC. 337 HL. At 374, Lord Herschell
[9] Okoli v. Morecab Finance (Nig.) Ltd. (2007) 14 NWLR (Pt.1053) 37
[10] Per Nnaemeka Agu, J.S.C." (P. 13, paras. C-D) Ojibah V. Ojibah (1991) LPELR-2374(SC)
[11] Arowolo v. Ifabiyi (2002) LPELR-562(SC) Per Iguh, J.S.C. (Pp. 18-19, paras. F-G)
[12] Prince Oil Ltd v. GTB Plc (2016) LPELR-40206(CA) Per MUSTAPHA, J.C.A. (Pp. 6-7, Paras. C-B)
[13] Section 11
[14] Best Nigeria Ltd. v. Blackwood Hodge Nigeria Ltd. (2011) LPELR-776(SC) Per Fabiyi, J.S.C. (P.26, Paras.B-E)
[15] Afrotec Technical Services (Nigeria) Ltd. V. MIA & Sons Ltd. & Anor. (2000) LPELR-219(SC) Per Iguh,J.S.C. (P.66, Paras.A-D)
[16] Universal Vulcanizing (Nigeria) Ltd. V. Ijesha United Trading & Transport & Ors (1992) LPELR-3415(SC) Per Kutigi, J.S.C (P. 38, paras. F-G)
[17] Mkpedem v. The Govt. of Akwa Ibom State (2010) LPELR-4489(CA) Per Akaahs, J.C.A. (Pp. 13-14, paras. G-B)
