ALHAJI NURUDEEN OLUFUNMISE (APPELLANT)

v.

MRS. ABIOLA LABINJOH FALANA (RESPONDENT)

(1990) All N.L.R. 321

Division: Supreme Court of Nigeria

Date of Judgment: 27th April, 1990

Case Number: (S.C. 137/1987)

Before: Obaseki, Ag. CJN, Nnamani, Belgore, Agbaje, Wali, JJ.S.C.

Two actions were filed by the parties in the High Court; Suit No. LD/521/75 was instituted by the respondent against the appellant while Suit No. LD/828/75 was instituted by the appellant against the respondent as second defendant for inter alia an order to set aside a previous judgment in suit No. LD/355/68 which was allegedly obtained by fraud.

The two Suits LD/521/75 and LD/828/75 were consolidated for trial at the conclusion of which the trial Judge dismissed the claim in Suit No. LD/828/75 and granted the reliefs claimed in Suit No. LD/521/75. In other words the appellant lost as plaintiff in suit no. LD/828/75 and as defendant in suit no. LD/521/75.

The appellants appeal to the Court of Appeal against the refusal of the trial court to set aside the judgment in suit no. LD/355/68 was dismissed for lack of merit hence his further appeal to the Supreme Court.

HELD:

(1)     By virtue of Order 16, rule 5(1) of the High Court of Lagos State (Civil Procedure) Rules, 1972 where fraud is alleged, the particulars with dates and items of necessary should be given in the pleadings. Where no fraud is alleged, evidence of fraud will not be allowed at the trial, and if allowed, will be expunged on appeal.

(2)     In pleading fraud it is unnecessary to use the word. It is sufficient, for example, to plead that the defendant made to the plaintiff representations on which he intended him (The Plaintiff) to act, which representations were untrue and known to the defendant.

(3)     A judgment which has been obtained by fraud, either in the court or of one or more of the parties, can be impeached or set aside by means of an action which may be brought without leave. Before such action can succeed, it must be proved that, but for the fraud, the judgement would have been in favour of the other party. In the instant case it cannot be said, assuming that fraud was proved, that but for such fraud, the decision in Suit No. LD/353/68 could have been in favour of the appellant.

(4)     Silence is not a ground in law for an action of deceit, although it may act as an estoppel and thereby deny a remedy. In this case, silence or failure of the respondent to testify in the circumstance does not amount to fraud.

(5)     Misrepresentation which is necessary to found an action of deceit or an action to set aside judgement obtained by fraud must be misrepresentation as to a part of existing fact.

(6)     To entice the plaintiff to succeed for fraud committed on the court or on him he must show that it was the misrepresentation which caused the damage.

(7)     In order to establish that a misrepresentation caused damages to him, a plaintiff has to show that the misrepresentation was a material representation, that is to say that it was capable of causing the damage of which he complains. In the instant case the burden was on the appellant to establish that the act of fraud complained of amounted to fraud and that the fraud influenced the trial Judge to come to the decision he gave in his judgement. This burden he failed to discharge as the inducing cause pleaded by him did not amount to fraud.

Appeal dismissed.

Cases referred to:

Atuyeye v. Ashamu (1987) 1 N.W.L.R. (pr.49) 267.

Baker v. Wandsworth (1899) 67 L.V.Q.B. 301.

Bayse v. Rassbarough 6 H.C. Cas 48.

Birch v. Birch (1902) C. a. 130.

Boswell v. Coaks (No. 2) (1894) L.T. 3005 H.L.

Briess v. Oolley (1954) A.C. 333.

Cammell v. Sewell (1858) H. & N. 617.

Coaks v. Boswell (1886) 11 A.C. 232 H.C.

Davy v. Garnett 7 Ch.D. 489.

Edginton v. Fitzmaurice (1885) 29 Ch.D. 659.

Evereh v. Ribbands (1946) 175 L.T. 143 c. A.

Flower v. Lloyd (1978-79) 10 Ch.D. 327.

Hip Foong Hong v. H. Neotia & Co. (1918) A.C. 888 P.C.

Jonesco v. Beard (1930) A.C. 298.

Re Patrick and Lyon Ltd. (1933) Cit. 786.

Smith v. Chadwick (1884) 9 A.C. 187.

Stern v. Friedman (1953) 1 All E.R. 565.

Tamakloe v. The Basel Trading Company Ltd. 6 W.A.C.A. 231.

Thorne v. Smith (1947) K.B. 307.

Yorkshire Insurance v. Gran (1922) 2 A.C. 541.

United African Company v. Taylor 2 W.A.C.A. 70.

Statute referred to:

High Court of Lagos Civil Procedure Rules 1972.

S.C. 137/1987

Dr S. Abayomi for the Appellant.

W.A. Oseni, Esq, for the Respondent.

Obaseki, AG. C.J.N.:-This appeal is against the decision of the Court of Appeal sitting on appeal from the decision of the High Court of Lagos State in the consolidated suit LD/521/75 and LD/828/75.

The respondent was the plaintiff and the appellant was the defendant to the claim filed in suit No. LD/521/75. There, the plaintiff claimed:

"(1)    a declaration that the plaintiff is entitled to a moiety of the house and landed property known and described as No. 20 and 20A Glover Street, Lagos and covered by Land Certificates Title No. LO.1004 and LO.359 respectively;

(2)     an account from the defendant of all rents collected by the defendant from September, 1970 to March, 1975

(3)     payment of half the amount collected from tenants and/or occupants of the said premises by the defendants."

In suit LD/828/75 the appellant was the plaintiff and the respondent the 2nd defendant. Therein the plaintiff claimed:

"(1)    An order to set aside the judgment of Mr Justice B.O. Kazeem delivered on 27th day of September, 1970 in suit No. LD/355/68 which was obtained by fraud;

(2)     An order rectifying the Registers of Title by replacing the plaintiff's name as the registered proprietor of Nos. 20 & 20A Glover Street, Lagos, under Title No. LO.1004 and LO.03659 which was expunged there from and replaced with the names of the defendants.

(3)     The sum of N10,000.00 (Ten thousand Naira) being special and general damages."

This appeal is concerned with the judgment in this latter suit.

Pleadings were filed and served and in paragraphs 8, 9 and 10 of the defendant's/respondent's statement of defence, the respondent raised issues pertinent to this appeal. These paragraphs read:

"(8)    The second defendant will contend at the trial that the plaintiff was aware of all the facts now averred in his statement of claim when suit No. LD/355/68 was before the court and that the judgment in that suit was not obtained by fraud.

(9)     The second defendant will take as a preliminary point that the plaintiff is estopped per rem judicatam as a result of the judgment in the said suit No. LD/355/68 and appeal thereon in suit No. SC.69/71/.

(10) The second defendant will further contend that the action is frivolous and misconceived and should be dismissed as an abuse of the court's process."

The case of the appellant as plaintiff is set out in paragraphs 5, 6, 7, 8, 9, 10, 13, 14 and 15 of the statement of claim filed in the said suit. These paragraphs being vital to the case of the appellant are hereby set out. They read:

"(5)    On the 28th December, 1965, the plaintiff bought the properties from Chief Modupe Johnson, then Minister of State, Federal Ministry of Labour for the sum of £6,500.00 and at the time of purchase of the said properties, the plaintiff did not know about the defendants until the said suit No. LD/355/68.

(6)     On receipt of the writ of summons in the said suit No. LD/355/68, the plaintiff handed same to his solicitor and counsel, Mr Bashir Agusto to defend him on the grounds that he (the plaintiff) was an innocent purchaser for value.

(7)     In the Plaintiff's (then 4th defendant in the said suit LD/355/68) statement of defence paragraph 7 thereof, it was stated inter alia that the plaintiff was a purchaser for value without notice and that the properties had passed through various persons by way of mortgage and sales before being finally purchased by the plaintiff.

(8)     The learned Judge in the said suit LD/355/68 however, in his judgment, stated that in the absence of documentary evidence he found it difficult to accept the evidence of the plaintiff that the plaintiff bought the said properties either from Mr Joseph Modupe Johnson or for the amount of £6,500 and he was therefore not satisfied that the plaintiff was a purchaser for value of the said property as pleaded in paragraph 7 above.

(9)     The Supreme Court in suit No. SC.69/1971 affirmed the said judgment of the High Court in the said suit No. LD/355/68.

(10) Since the above said judgment of suit No. SC/69/1971 the plaintiff upon investigation, found other suits in the matter namely:-

(1)     . . . suit No. 465/1952

The suit was withdrawn.

(2)     . . . suit No. LD/293/56

This action was also later withdrawn by the said plaintiffs (that is defendants in the present action)

(3)     . . . suit No. M/99/1966

(13) On the 7th October, 1968 the said suit No. M/99/1966 was struck out by Mr Justice O.R.I. George;

(14) The plaintiff avers that the defendants knew of the facts mentioned in paragraphs 10(2), 11, 12 and 13 hereof, but misled the court in suit No. LD/355/68 in that the 1st defendant and the 2nd defendant's mother (who held a power of attorney for the 2nd defendant and who attended the court throughout the proceedings) refused and/or neglected to inform the court of the above said facts more particularly facts contained in suit No. M/99/1966;

(15) The plaintiff further avers that as a result of the court being misled, a fraudulent judgment was obtained in the said suit No. LD/355/68."

At the close of pleadings, the respondent as 2nd defendant by motion on notice dated the 1st day of November, 1975 filed on the same date moved the High Court for "an order dismissing the suit" on the ground that the action

(1)     "is an attempt to re-open the issue decided in suit No. LD/355/68 and confirmed in suit No. SC.69/71 and a call on the High Court to sit as a court of appeal on the decision of the Supreme Court.

(2)     is frivolous, speculative and an abuse of court process."

The motion was heard and dismissed on 7th day of June, 1976 by the Court, Per Kazeem, J., holding that he would hear evidence on the issues joined on the pleading. Hearing commenced with the evidence of Alhaji Nurudeen Adio Olufunmishe. He then proceeded to hear evidence in the consolidated suit.

After hearing evidence, the learned trial Judge, in a well considered judgment dismissed the claim of the appellant and in the concluding paragraphs of his judgment, the learned trial Judge said:

"I have examined the statement of claim of the plaintiff in suit LD/828/75; I have also had the opportunity of perusing the judgment of my learned brother, Kazeem, J. (as he then was) as well as judgment of the Supreme Court on appeal on the said judgment and I must say that I find myself in respectful agreement with the decisions reached both by my learned brother and the learned justice . . ."

Continuing, he said in conclusion;

"The plaintiff gave evidence at the trial before Kazeem, J., to the effect that he bought for a certain sum but produced no document to convince the court and the court made its findings fact on the issue. This is the product of the default in the plaintiff and he cannot seek to relitigate to correct that error through the back door. The plea of res judicata, in my considered view, is well founded in this case, the plaintiff's case is liable to dismissal on that ground. Both defendants claim that they have no knowledge of the sale at the time it was made nor is there any evidence that they knew whether or not any value was given for the sale that was a matter peculiarly within the plaintiff's knowledge and of which he would be deemed to have proof which he failed to produce. I am therefore in entire agreement with the submission of the learned Counsel for the 2nd defendant that this case should be dismissed as being judicata. It is accordingly dismissed."

The law on setting aside a judgement obtained by fraud is very well settled. It is not in doubt and the elements of fraud to be proved to entitle a claimant/plaintiff to succeed are clear and precise. The learned authors of Halsbury's Laws of England 2nd Edition Vol. 22 page 790 set out the law in paragraph 1669 as follows:

"A judgement, which has been obtained by fraud either in the court or of one or more of the parties, can be impeached by means of an action which may be brought without leave and is analogous to the former Chancery suit to set aside a decree obtained by fraud. In such an action, it is not sufficient merely to allege fraud without giving any particulars, and the fraud must relate to matters which prima facie would be reason for setting the judgment aside if they were established by proof and not to matters which are merely collateral. The court requires a strong case to be established before it will allow a judgment to be set aside on this ground, and, unless the fraud alleged raised a reasonable prospect of success and was discovered since the judgment complained of, the action will be stayed and dismissed as vexatious."

Where fraud is alleged, the rule of pleading requires that the particulars should be given. See Order 16, rule 5(1) of the High Court of Lagos State Civil Procedure Rules. This Rule reads:

"In all cases in which a party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence and in all other cases in which particulars may be necessary, particulars with dates and items if necessary shall be stated in the pleadings."

It is now Order 17, rule 5(1) in the High Court of Lagos State (Uniform Civil Procedure Rules) 1987.

The plaintiff/appellant being dissatisfied with the decision of the High Court, delivered by Ademola Johnson, J., appealed to the Court of Appeal without success. Five grounds of appeal were argued but the appeal was dismissed by the Court of Appeal for lack of merit. Still dissatisfied, the plaintiff/appellant has now appealed to the Supreme Court. Two grounds of appeal were filed with the notice of appeal and they read:

(1)     The judgment of the Court of Appeal is wrong in law in that the learned Justices misconstrued and misapplied the law of pleadings when they held that the appellant did not give particulars of fraud in his statement of claim when the particulars and evidence were so given.

Particulars

Paragraphs 9, 10, 11, 12, 13, 14 and 15 of the statement of claim states clear the particulars of frauds, particularly paragraphs 14 and 15 which state as follows-

(14) . . .

(15) . . .

"The judgment of the Court of Appeal is wrong in law by

(i) holding that the learned trial Judge made a specific finding on fraud when no such finding was made;

(ii) by making use of the very judgment sought to be set aside as res judicata

Particulars

The Court of Appeal failed to make a distinction between the summing up of the trial Judge and a specific finding of fact. The learned Justices overlooked the principle that it would amount to injustice to use the very judgment sought to be set aside to defeat the appellant's claim on the doctrine of estoppel."

Although ground 2 is well taken, its success cannot affect the merit of this appeal. This is so because the statement of claim is totally devoid of any particulars of fraud and more so as the evidence led by the plaintiff himself totally destroyed the case of fraud alleged.

The questions, for determination formulated by the appellant in his brief are sixfold: "(1)     whether the statement of claim filed by the appellant gave particulars of fraud.

(2)     whether the Court of Appeal was right when it held that no particulars of fraud were given by the plaintiff/appellant in the statement of claim.

(3)     If the answer to question 1 is in the affirmative and to question 2 is in the negative, was the decision of the Court of Appeal correct in law to have held that no particulars of fraud were given and to have based its decision on that finding?

(4)     whether the statement made by the trial Judge as found by the Court of Appeal and which is reproduced below is a specific finding of fact-

"What fraud is here alleged or particularised to justify the offset of that judgment. In paragraph 10 of the statement of claim, the plaintiff, Alhaji Olufunmise claimed that upon investigation after the trial of the case he lost, he had discovered other suits in the matter. I do not see how this alleged discovery avails him anything. The overriding maxim of law is 'caveat emptor' let the buyer beware. The alleged discoveries are matters which should have come to the knowledge of the plaintiff if he had or caused proper enquiries to be made before buying the property in question. By his failure to investigate properly, he is deemed to have notice of all such facts as would have come to his knowledge had he made the proper investigation.

(5)     If the answer to question 4 is in the negative, was the Court of Appeal correct in law to have held as it did?

(6)     In the fresh action instituted to set aside a judgment on the ground that the said judgment was obtained by fraud will it be right to use the very judgment sought to be set aside as an answer to the complaint of fraud?

The facts of this case are not in dispute. For the purpose of emphasis, they are briefly as follows:

Two actions were filed by the parties in the High Court of Lagos State. The first suit No. LD/521/75 was instituted by the respondent, Mrs Abiola O. Labinjoh-Falana against the appellant Alhaji Nurudeen A. Olufunmishe and the second suit No. LD/828/75 was instituted by the appellant, Alhaji Nurudeen A. Olufunmishe against (1) Theophilus E. Gbolahan Labinjoh and (2) Mrs Abiola O. Labinjoh-Falana, the respondent herein. The claim in suit No. LD/521/75 was for:

"(1)    A declaration that the plaintiff is entitled to a moiety of the house and landed property known and described as No. 20 and 20A Glover Street, Lagos and covered by land certificates title Nos. LO.1004 and LO.03569 respectively;

(2)     An account from the defendant of all rents collected by the defendant from September, 1970 to March, 1975;

(3)     Payment of half of the amount collected from the tenants and/or occupants of the said premises by the defendant to the plaintiff;

While the claim in suit No. LD/828/75 is for

(1)     An order to set aside the judgment of Mr Justice B.O. Kazeem delivered on 27th day of September, 1970 in suit No. LD/355/68 which was obtained by fraud;

(2)     An order rectifying the Register of Titles by replacing the plaintiff's name as the registered proprietor of Nos. 20 and 20A Glover Street under title Nos. LO.1004 and LO.03659 which was expunged there from and replaced with the names of the defendants.

(3)     The sum of N10,000.00 (ten thousand Naira) being special and general damages."

The two suits were consolidated for trial and at the conclusion of the trial, the learned trial Judge, Ademola-Johnson, J. (as he then was) dismissed the claim in suit No. LD/828/75 and granted the reliefs claimed in suit No. LD/521/75. In other words, the appellant lost in both suits. He lost as plaintiff in suit LD/828/75 and he lost as defendant in suit No. LD/521/75. The court made the declaration prayed for, ordered the appellant to file an account of all rents collected on the properties and payment of half of such sums made to the court with the filing of the accounts.

The appellant's appeal to the Court of appeal as stated earlier above was lost for lack of merit.

From the issues formulated, arguments have concentrated mainly on the part of the judgment dealing with the claim in suit No. LD/828/75 and as no arguments have been addressed to us on grant of the claim in suit No. LD/521/75, I take it therefore, that the appeal against the judgment in that claim has been abandoned.

The major issue for determination in this appeal is whether particulars of the fraud alleged were given in the appellant's statement of claim and if given whether they have been proved strictly as required by law. The law on the point is recondite settled and does not admit of any equivocation. It is briefly stated in Vol. 26 Halsbury's Laws of England 4th Edition page 285 paragraph 560 as follows:

"A judgment which has been obtained by fraud, either in the court, or of one or more of the parties may be impeached by means of an action which may be brought without leave and is analogous to the former Chancery suit to set aside a decree obtained by fraud. In such an action, it is not sufficient merely to allege fraud without giving particulars. The particulars must be exactly given and the allegation established by strict proof such a charge requires whether the judgment is impeached by action or by motion for a new trial.

The court will refuse to set aside a judgment on the mere allegation of perjury without new facts and the fraud must relate to matters which prima facie will be a reason for setting the judgment aside if they were established by proof and not to matters which are merely collateral. The court requires a strong case to be established before it will set aside a judgment on this ground and the action will be stayed or dismissed as vexatious unless the fraud alleged raised a reasonable prospect of success and was discovered since the judgment.

As a rule, a judgment can only be set aside if at all against those who procured it by fraud, but this does not apply to probate action to set aside probate of a will."

See:

(1)     Cammell v. Sewell (1858) 1 H. & N. 617 at 646

(2)     Birch v. Birch (1902) P. 130 at 137 C.A.

(3)     Coaks v. Boswell (1886) 11 App. Cas. 232 H.L.

(4)     Boswell v. Coaks (No.2)(1894) L.T. 3005 H.L.

(5)     Thorne v. Smith (1947) K.B. 307

(6)     Jonesco v. Beard (1930) A.C. 298

(7)     Stern v. Friedman (1953) 23 All E.R. 565

(8)     Hip Foong Hong v. H. Neotia & Co. (1918) A.C. 888 P.C.

(9)     Baker v. Wandsworth (1899) 67 L.J.Q.B. 301

(10) Everett v. Ribbands (1946) 175 L.T. 143 C.A.

(11) Tamakloe v. The Basel Trading Company Ltd. 6 W.A.C.A. 231.

The question that arises in this appeal is whether the case of the appellant has met the requirements of the law. To ascertain this, the statement of claim will first have to be examined to see if particulars of fraud are pleaded and then the evidence in support of the particulars of fraud, if any is given in proof. Finally, I have to consider whether the judgement of the High Court (Kazeem, J) and the Supreme Court was a direct consequence of the fraud of the party. If the judgment complained of is not a direct consequence of the fraud, no basis or ground exists for setting aside the judgment. Where no fraud is alleged, evidence of fraud will not be allowed at the trial and if allowed at the trial, will be expunged on appeal. See

United African Company Ltd. v. Jones Eggay Taylor 2 W.A.C.A. 70 at 71 P.C.

Misrepresentation which is necessary to found an action of deceit or an action to set aside judgment obtained by fraud must be misrepresentation as to a past or existing fact (see per Lord Atkinson in Yorkshire Insurance v. Craine (1922) 2 A.C. 541, 553. It is established clearly that a representation of present intention whether the intention be that of the representor or of a third party is a sufficient representation of an existing fact to form the foundation of an action for deceit. Bowen, L.J., in the case of Edgington v. Fitzmaurice (1885) 29 CH.D. 459 AT 483, said

"That state of a man's mind is as much a fact as the state of his digestion. It is true that it is difficult to prove what the state of a man's mind at a particular time is but if it can be ascertained, it is as much a fact as anything else."

Silence is not a ground in law for an action of deceit although it may act as an estoppel and thereby deny a remedy.

See Briess v. Wooley (1954) A.C. 333

See Coaks v. Boswell (1886) 11 App Case 232

per Lord Selborne at 236. To be actionable, the plaintiff and in this case, the court must have been influenced by the misrepresentation. To entitle a plaintiff to succeed for fraud committed on the court or the plaintiff, it is not enough to show that it was followed by damage to him, he must show that one was the cause of the other, he must establish that in doing the act whereby he suffered damages, he was "adhibens fidem" relying upon the truth of the representation. In order to establish this the plaintiff will of course have to show that the misrepresentation was a material misrepresentation that is to say that it was capable of causing the damage of which he complains. This was succinctly put by Lord Selborne, L.C., in Smith v. Chadwick (1844) 9 App. Case 187, 190 when he said:

"He (the plaintiff) must establish that this fraud was an inducing cause to the contract for which purpose it must be material and it must have produced in his mind the erroneous belief inducing his conduct."

In the instant appeal, the appellant must establish that the act complained of amounted to fraud and that the fraud influenced Kazeem, J. to come to the decision he gave in his judgment. But this, I regret to say, he has failed to do. The inducing cause pleaded does not amount to fraud. There is therefore total absence of particulars of fraud from the pleadings delivered by the appellant. This being so, the appellant's case never got off the ground. The appellant regarded the facts pleaded in his paragraphs 5, 6, 7, 8, 9, 10, 13, 14 and 15 of the statement of claim as particulars of fraud against the respondent. Having examined them, I find that the facts pleaded in these paragraphs cannot by any stretch of imagination constitute particulars of any fraud let alone particulars of the fraud on which an order setting aside the judgment in suit No. LD/355/68 confirmed in suit No. SC.69/71 can be founded. In the first place, paragraph 8 of the statement of claim expressly shows that:

"The learned Judge in the said suit No. LD/355/68 (i.e. Kazeem, J.)(as he then was) stated that in the absence of documentary evidence, he found it difficult to accept the evidence of the plaintiff that the plaintiff bought the said properties either from Mr Joseph Modupe Johnson or for the amount of £6,500.00 and he was therefore not satisfied that the plaintiff was a purchaser for value of the said property."

and the fact pleaded in paragraph 9 of the statement of claim to the effect that:

"The Supreme Court in suit No. SC.69/1971 affirmed the said judgment of the High Court in the said suit No. LD/355/68.

concluded the matter against the appellant on the issue. This showed that what influenced the judgement of Kazeem, J., was the failure/neglect and inability of the appellant to support his assertion of purchase of the property with documentary evidence. The judgment was not influenced by the facts pleaded in sub-paragraphs 1, 2 and 3 of paragraph 10 which cannot qualify as material facts.

The claim in suit No. LD/465/1954 for the removal of the defendants therein as Executors and Executrix of Theophilus Adetokunbo Labinjoh and for account appears to me irrelevant. More irrelevant is suit No. LD/293/56 pleaded in paragraph 10(2) of the statement of claim on the ground that the action for account of the administration of the Estates and to set aside the sale of the properties then known as Nos. 18 and 20 Glover Street, Lagos was withdrawn by "the plaintiffs (defendants in the present action)." The inference the withdrawal of the action by the respondent herein had on Kazeem, J., lies more in imagination than in reality, similarly, the facts pleaded in paragraph 10(3) of the statement of claim that suit No. M/99/1966 was struck out bear no relevance to the reasons for judgment.

Moreover, these are not facts peculiarly within the possession of the respondent. They are matters of record which cannot be concealed by the respondent from the court to earn her a charge of misrepresentation and fraud. Secondly, the respondent never testified in suit No. LD/355/68 but appeared by an attorney. How can a person who never appeared in person or testified in any proceedings before the court mislead the court by, as pleaded in paragraph 14 of the statement of claim

"refusing and or neglecting to inform the court of the innocuous facts contained in suit M/99/1966 which had been struck out by O.R.I. George J.?"

It is an impossibility and the mystery lies in the running riot of the appellant's imagination and animosity towards the respondent.

Thus, on the facts pleaded by the appellant himself, his action was rightly dismissed by the learned trial Judge and the dismissal properly affirmed by the Court of Appeal.

Silence or failure to testify in the circumstance does not amount to fraud and the submission of learned Counsel for the appellant that it does is erroneous in law and actively misconceived.

The appeal fails and is hereby dismissed with N500.00 costs to the respondents. The decision of the Court of Appeal is hereby affirmed.

Nnamani, J.S.C.:-I had a preview of the judgment just delivered by my learned brother, Obaseki, Acting Chief Justice of Nigeria and I entirely agree with his reasoning and conclusions.

This suit is one of the many suits between the parties herein. The appellant was the plaintiff in suit No. LD/828/75 and the defendant in Suit No. LD/521/75. The two actions LD/828/75 and LD/521/75 were consolidated. The appellant had in his own suit claimed among other reliefs the setting aside of the judgment in LD/355/68, a judgment delivered by Kazeem, J. (as he then was) which was affirmed by the Supreme Court in Suit No. SC. 69/1971. The learned trial C.J., Ademola Johnson dismissed the appellant's claim on the ground of res judicata, but granted the respondent the reliefs in her own claim. This judgment was affirmed by the Court of Appeal hence appellant's appeal to this Court.

The main issue arising in this appeal is whether the High Court and the Court of Appeal were right in refusing to set aside the judgment of Kazeem, J., on grounds of fraud, and therefore whether they were right to have defeated the appellant's claim on the plea of res judicata based on that judgment. My learned brother has dealt with this issue fully in the lead judgment. That a judgment of a Court can be set aside if fraud can be established is not in dispute. The question here is whether the appellant has established fraud to justify setting aside the judgment in LD/355/68. The appellant in paragraphs 9, 10, 11, 12 and 13 of his statement of claim pleaded facts relating to several suits-465/1954, LD/293/56, M/99/1966-which he claimed he knew about after the judgment in LD/355/68. These cases were between the executors of the estate of the respondent's father, and in M/99/66 for instance, was between one T.E. Labinjo and the Executors of the estate of T.A. Labinjo. The contention of the appellant was that the respondent ought to have revealed to the Court in LD/355/68 that in M/199/66 she knew that the property had been sold by public auction by the Executors and that she the respondent and her brother benefited from the sale. This is what Mr Abayomi, learned Counsel to the appellant referred to as Supressio veri which he contended was as fraudulent as suggestion falsi.

It is pertinent to mention that the respondent in paragraphs 7 and 8 of her statement of defence pleaded that the appellant knew of these facts at the time LD/355/68 was tried.

Fraud is defined in Stroud's Judicial Dictionary 4th Edition Vol. 2 as "something dishonest and morally wrong." See Bayse v. Rossborough 6 H.I. Cas 48, 49; Re Patrick and Lyon Ltd. (1933) Clt 786. It is trite that it has to be pleaded and established in evidence. In pleading, it is frequently unnecessary to use the word. The form used is something like "an allegation that the defendant made to the plaintiff representations on which he intended the plaintiff to act, which representations were untrue and known to the defendant to be untrue is sufficient." See Thesiqer, L.J., in Davy v. Garnett Ch.D 489. That is certainly not the nature of the pleadings in the instant case. What the appellant set down in paragraphs 9-14 of his statement of claim were allegations about various suits which the respondent and her mother were alleged to have hidden from the Court in LD/355/68. As pointed out by the Court of Appeal, no particulars of the alleged fraud were pleaded nor did the appellant lead any evidence at the trial Court to establish it. I am of the view that the action of the appellant was an attempt to correct the fatal errors he had made in LD/355/68. There Kazeem, J. (as he then was) said in his judgment of the appellant's defence that he was a purchaser for value without notice.

"No document whatsoever was tendered by the 4th defendant in support of his evidence that he bought the said property from Mr Joseph Johnson for a sum of £6,500 and the Land Certificate in respect of Title No. LO.1004 and LO.03659 which he admitted belonged to him were not produced. Moreover it is clear from his answers under cross-examination that he made no investigation whatsoever about the title of his vendors before he purchased the property nor did he make or cause to be made any inquiry as to any other interests affecting the said property."

It was for these reasons and the more detailed reasons in the lead judgment that I also dismissed this appeal. I endorse the order for costs in the lead judgment.

Belgore, J.S.C.:-I have read in advance the judgment of my learned brother, Obaseki, Acting C.J.N., with which I agree entirely. I also find no merit in this appeal and I dismiss it with the same order as to costs made in the lead judgment.

Agbaje, J.S.C.:-I have had the opportunity of reading in draft the lead judgment of my learned brother, Obaseki, Acting Chief Justice of Nigeria. I agree with him and his reasoning that the appellant's appeal is devoid of merit.

The relevant facts including the pleadings in the consolidated actions-Suit No. LD/521/75 and suit No. LD/828/75 in a Lagos High Court-have been set out fully in the lead judgment of my learned brother. I have only to draw on them in this concurring judgment.

The appellant, Alhaji Nurudeen Olufunmise, claimed as follows against the respondent, Mrs Abiola Labinjo Falana and another in suit LD/828/75:-

"An Order to set aside the judgment of Mr Justice B.O. Kazeem delivered on 27th day of September, 1970 in Suit No. LD/355/68 which was obtained by fraud. (2) An order rectifying the Registers of Titles by replacing the Plaintiff's name as the registered proprietor of Nos. 20 & 20A Glover Street, Lagos, under Title Nos LO.1004 and LO.03659 which was expunged there from and replaced with the names of the Defendants. (3) The sum of N10,000.00 (Ten thousand Naira) being special and General Damages."

The claims were evidently a direct reaction by the appellant to the earlier claims by the respondent against him in suit LD/521/75 wherein she claimed as follows:-

"(1)    A Declaration that the Plaintiff is entitled to a moiety of the house and landed property known and described as No. 20 and 20A Glover Street, Lagos and covered by Land Certificates Title Nos. LO.1004 and LO.3059 respectively.

(2)     An Account from the Defendant of all rents collected by the Defendant from September, 1970 to March, 1975.

(3)     Payment of half of the amount collected from the tenants and/or occupants of the said premises by the Defendant to the Plaintiff."

The respondent's Statement of Claim in the action shows quite clearly that the claims of the plaintiff the respondent were based virtually exclusively on the premise that the decision of Kazeem, J. (as he then was), in suit LD/355/68, concluded the action in favour of the respondent against the appellant. It appears to me that the appellant, as the defendant to suit LD/521/75, was not in his statement of defence saying that the decision in LD/355/68 was not binding on him or that it did not estop him from denying the respondent's claims. Relevant to what I have just said are paragraphs 7(b), 8 and 9 of the appellant's statement of defence which say as follows:-

"(7b) The Defendant avers that he is a bona fide purchaser for valuable consideration and he has obtained a legal title.

(8)     The Defendant avers that if the said Suit No. M/99/1966, and paragraph 7 above had been properly brought to the notice of the High Court in Suit No. LD/355/68 and in Suit No. SC.69/77 the judgment of the Learned Judge of the High Court and that of the Justices of the Supreme Court would have been different, as, the Defendant lost the case because the learned Judges remarked that the Defendant had not established that he was a purchaser for value without notice.

(9)     That further to paragraph 8 above, the Defendant says that the Plaintiff knowing in Suit M/99/1966 that the property had already been sold and the proceeds obtained there from had been shared between her brother and herself, it was fraudulent for her to bring the action of Suit No. LD/355/68, and also this present action."

In effect the appellant's defence in Suit LD/521/75 is that there are grounds on which the judgment in LD/355/68 can be set aside on account of fraud. Perhaps counsel for the appellant thought that if the judgment was not impeached in an action and formally set aside it could form the basis of a plea of res judicata, the allegation of fraud in respect of it notwithstanding. Maybe counsel had not addressed his mind to the full implications of the provisions of the Evidence Act which say:-

"(52) Any party to a suit or other proceeding may show that any judgment, order or decree which is relevant under section 48, 49 or 50 and which has been proved by the adverse party, was delivered by a court without jurisdiction, or was obtained by fraud or collusion."

So Suit No. LD/828/75 was a sequel of the defence of the appellant in suit No. LD/521/75. Having regard to the provisions of section 52 of the Evidence Act copied above, it is in my view an unnecessary sequel. The allegation of fraud against the decision in suit LD/355/68 could conveniently have been investigated and dealt with in suit LD/521/75 where it was pleaded as a relevant fact without recourse to separate action on the point. Perhaps if this had been done we would not have been faced with the situation in this appeal where it appears no arguments have been advanced by the appellant against the judgment in suit LD/521/75, all arguments having been concentrated on the decision in suit No. LD/828/75, without linking the arguments to the appeal of the appellant against the other decision. Perhaps it was in the mind of counsel for the appellant to say the appeal of the appellant in suit LD/521/75 will stand or fail by the decision in the appeal against LD/828/75. Counsel owes this Court a duty to say so.

I now turn to the appeal against the decision in suit No. LD/828/75 an action to set aside the judgment of Kazeem, J., as he then was, on account of fraud.

It is trite law that in order to have a judgment set aside on the ground that it was obtained by fraud it must be established that the judgment was procured by fraud.

It is plausible as submitted by counsel for the appellant that paragraphs 9, 10, 11, 12, 13, 14 and 15 of the appellant's statement of claim in suit LD/828/75 contain the particulars of the fraud the appellant is relying on. It is equally plausible as contended for the appellant that in these paragraphs the appellant is saying that the respondent knew before instituting her action in Suit No. LD/355/68 that the property in question had been sold hence her three previous suits against the Trustees of the Estate to set the said sale aside; that the respondent got her own shares in the proceeds of the said sale; and that the respondent suppressed these facts at the trial court and got judgment against the appellant. Atuyeye v. Ashamu (1987) 1 N.W.L.R. (Pt.49) 267 is authority for saying that the particulars of fraud may be contained in the allegations of the fraud themselves. So technically speaking it will be wrong to say that the appellant has not given any particulars of the fraud he is complaining of. Whether the fraud alleged, if proved, will be grounds sufficient to have the judgment in LD/355/68 set aside on account of its having been obtained by fraud, is another matter.

The following paragraphs of the appellant's statement of claim in LD/828/75 tell us (1) what Suit LD/355/68 was all about, and (2) the decision and the reasons for the decision in the case:-

(4)     "The defendants brought an action as Plaintiffs in Suit No. LD/355/68.

Between:

(1) T.E.G. Labinjoh

(2) Abiola Omolayo Labinjoh-Falana                       )

                                                                                )       Plaintiffs

                                                                                                                        )

(as beneficiaries of the Estate)

of T.A. Labinjoh Deceased.)

AND

(1) Lasisi Akintunde                         )       As Executors)

                                                                                                 )       of the

                                                                                                 )       Estate of T.A.

                                                                                                 )       Labinjoh

                                                                                                 )       deceased

(2) Phillip Samson