LAW TIP
Fraud should be clearly pleaded but not doing so isn’t always fatal. If evidence of fraud is clear and not objected to, the court can still consider it, even if it wasn’t specifically pleaded. JOANA NYARKO v MAXWELL TETTEH & 2 ORS Suit No. J4/27/2019 (11 /12/2019)
QUOTE FROM JUDGEMENT
“Dealing first with the issue of the Plaintiff neither pleading nor particularizing fraud, we agree with the decision of the trial High Court, that this is not fatal. This Court has held in a number of cases such as Amuzu v Oklikah [1998-99] SCGLR 141 and Ecobank Nigeria PLC v Hiss Hands Housing Agency [2017-2018] 1 SCGLR 355 that though it is preferable to plead and particularise fraud failure to do so is not fatal in all circumstances. In the Oklikah case, Atuguba JSC stated at page 183 as follows: “In this case fraud has not been distinctly pleaded. But in view, especially of the provisions of sections 5,6 and 11 of the Evidence Decree, 1975 (NRCD 323) regarding reception of evidence not objected to, it can be said, that where there is clear but unpleaded evidence not objected to, the court cannot ignore the same, the myth surrounding the pleading of fraud notwithstanding” JOANA NYARKO v MAXWELL TETTEH & 2 ORS Suit No. J4/27/2019 (11 DECEMBER 2019) KOTEY JSC (Unanimous decision of the SC)
OR
And in the Ecobank Nigeria Ple case (supra), Gbadegbe JSC, after referring to the requirement of order 11 rule 12 (1) (a) of the High Court (Civil Procedure) Rules, 2004 (C.I.41) that particulars of fraud shall be specifically pleaded, continued at page 367; “Although the rule is expressed in mandatory language, our courts have held that where a party fails to comply with the requirement of order 11 rule 12 (1) (a) but his opponent fails to object to evidence in support of the allegation of fraud, a court of law cannot shut its eyes to the evidence so led but must take it into account in deciding the dispute before the court.” So, in the Ecobank Nigeria Pic case, (supra) where the court found that funds have been transferred into the accounts of the first defendant improperly and with a view to depriving the plaintiff of the benefit of his money, this court found that fraud had been established. This court held that the dishonourable and unconscionable conduct of the first defendant amounted to fraud.”