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IN THE HIGH COURT OF JUSTICE

FEDERAL CAPITAL TERRITORY OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT LUGBE – ABUJA

ON, 3RD

DAY OF MAY, 2017.

BEFORE HIS LORDSHIP:- HON. JUSTICE A. O. OTALUKA.

SUIT NO.:-FCT/HC/CV/2138/14

BETWEEN:

MRS. CECILIA ANIH:.....................................................PLAINTIFF

AND

MR. ENEMEGBAI AUGUSTINE UMOGBAI.:...............DEFENDANT Gabriel Okpata for the Plaintiff. Val Igboanusi for the Defendant.

JUDGMENT.

The Plaintiff commenced this suit under the undefended list.

The Defendant however, filed a Notice of Intention to Defend,

after the hearing of which the suit was transferred to the

General Cause List and the parties were directed to file and

exchange pleadings.

The Plaintiff consequently filed a Statement of Claim on 21st

November, 2014 wherein she claimed against the Defendant as

follows;

1. An order of this Honourable Court compelling the

Defendant to pay the Plaintiff the sum of N7,300,000.00

(Seven Million, Three Hundred Thousand Naira) only,

being outstanding balance of the N10,000,000.00 (ten

Million naira) only, the Defendant collected from the

Plaintiff as a facilitator for the contract of building Houses

for Independent National Electoral Commission staff.

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2. An order of this Honourable Court compelling the

Defendant to pay the Plaintiff ten percent (10%) pre and

post judgment interest on the aforesaid sum from 6th

March, 2014 the date the cheque was dishonoured to the

date judgment is delivered and to the date the judgment

debt is fully liquidated.

3. Order the sum of N5,000,000.00 (Five Million Naira) only

as general damages to the Plaintiff.

4. Order the sum of N1,500,000.00 (One Million, Five

Hundred Thousand Naira) only as cost of litigation

including solicitor’s fees.

The case of the Plaintiff is that she was approached by the

Defendant sometime in May, 2013, who demanded the sum of

N10,000,000.00 for the facilitation of a contract of building

houses for Independent National Electoral Commission staff,

promising to use his position as the Special Assistant to the

Chief of Staff to the President of the Federal Republic of

Nigeria to secure the contract. According to the Plaintiff, she

immediately informed one Mr. Leo Umeh, a developer and a

customer of the bank where the Plaintiff works, about the offer

by the Defendant, and the said Leo Umeh indicated interest

and agreed to pay the N10,000,000.00 to the Defendant. The

Plaintiff averred that she personally handed the

N10,000,000.00 raised by Mr. Leo Umeh to the Defendant only

to later discover that they had been defrauded by the

Defendant as they found out that no such contract of building

houses for Independent National Electoral Commission staff

ever existed.

She averred that the Defendant has thus far refunded

N2,700,000.00 out of the N10,000,000.00 but has refused and

neglected to pay back the outstanding sum of N7,300,000.00,

hence the institution of this case.

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In response to the Defendant’s Statement of Defence, the

Plaintiff filed a reply, wherein the Plaintiff stated that the

N10,000,000.00 given to the Defendant was not for an illegal

transaction, that there was no meeting and negotiation of any

kind between the Plaintiff, the Defendant and Mr. Leo Umeh

with Independent National Electoral Commission officials, and

that the Plaintiff never gave any Independent National Electoral

Commission official money, neither did she execute any

memorandum of understanding with Independent National

Electoral Commission officials.

At the hearing of the case, Leo Umeh gave evidence for the

Plaintiff as PW1. He adopted his Witness Statement on Oath

wherein he stated that in May, 2013, the Plaintiff introduced him

to the Defendant as her trusted Church member and a Special

Assistant to the Chief of Staff to the then President, and who

was to help him facilitate and secure a contract from

Independent National Electoral Commission for building of

houses for its staff. That the Defendant demanded that the

Plaintiff pay him N10,000,000.00 to enable him facilitate and

secure the contract and in agreement, he gave N5,000,000.00

to the Plaintiff to which the Plaintiff added another

N5,000,000.00 previously given to the Plaintiff by his sister to

help her buy a house in his estate, to make up the

N10,000,000.00 which she gave to the Defendant. That when it

became obvious that the Defendant has failed to fulfil his part of

the transaction, he instructed the Plaintiff to recover his

N10,000,000.00 from the Defendant.

The PW1 further stated that the N10,000,000.00 he gave to the

Defendant through the Plaintiff was not for bribe but for a

genuine contract to facilitate and secure contract of building of

houses for Independent National Electoral Commission staff.

That he and the Plaintiff never met with Independent National

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Electoral Commission officers, neither did the Defendant

introduce them to any Independent National Electoral

Commission officials.

Under cross examination by defence counsel, the PW1 stated

that he did not file for any tender in Independent National

Electoral Commission. When asked if he knew the procedure

for getting contract from government, the PW1 stated that a

person will tender and bid for the contract and then wait for the

contract to be awarded. He however stated that he did not

follow the procedure as stated by him. He admitted knowing

that the Defendant was not a staff of Independent National

Electoral Commission.

The Plaintiff herself gave evidence as PW2. She stated that in

May, 2013, the Defendant who was a Special Assistant to the

Chief of Staff to the then President and a member of her

Church, approached her over a contract of building houses for

Independent National Electoral Commission Staff and

demanded the sum of N10,000,000.00 for the facilitation of the

contract, promising to use his position to secure the contract.

She stated that on the basis of the information from the

Defendant, she informed Mr. Leo Umeh, a

developer/contractor, and who was a customer of her Bank and

whose account she managed at the Bank, and he indicated

interest in the said contract of building houses for Independent

National Electoral Commission Staff.

The PW2 stated that Mr. Leo Umeh gave her the

N10,000,000.00 demanded by the Defendant and she

personally handed the money to the Defendant to facilitate and

secure the contract. She stated that after giving the money to

the Defendant, he became elusive and stopped answering her

calls. That she realised that she had been defrauded by the

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Defendant when he was not forthcoming on the terms they

agreed upon and when it was discovered that no such contract

of building houses for Independent National Electoral

Commission Staff ever existed.

Testifying further, the PW2 stated that she has made several

efforts to recover the N10,000,000.00 from the Defendant, all to

no avail. That the Defendant issued her a cheque of

N10,000,000.00 in repayment of the sum but that the same did

not clear, and he subsequently issued another cheque of

N8,700,000.00 which bounced upon presentation for payment.

She stated that following a report of the incident by Leo Umeh

to her employers, her employers suspended her indefinitely

without pay since March, 31st, 2014. She stated further that she

made a complaint at the Lugbe Police Station following which

the Defendant was invited by the Police and he made a written

admission of his indebtedness to her, and in his additional

statement to the Police, he stated how he was going to pay the

balance of N7,300,000.00 to her.

It was the evidence of the PW2, that out of the N10,000,000.00

given to the Defendant, he has repaid the sum of

N2,700,000.00 leaving a balance of N7,300,000.00 which he

has bluntly refused to pay. That she has suffered untold

hardship, physical and emotional/psychological trauma as well

as serious economic loss and indefinite suspension from work

as a result of the Defendant’s failure to repay the money he

owes her. And that she incurred huge expenses in instituting

this action, as she was charged the sum of N1,500,000.00 by

the law firm she consulted to institute the action.

Also testifying in furtherance to her reply to the Statement of

Defence, the PW2 stated that neither she nor Mr. Leo Umeh

gave bribe to Independent National Electoral Commission

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officials or any person whatsoever. That the N10,000,000.00

given to the Defendant was to facilitate and secure the

aforementioned contract, out of which sum, the Defendant has

repaid N2,700,000.00 leaving a balance of N7,300,000.00. She

stated that N2,200,000.00 was paid into her GTBank account

No. 0022620757 by the Defendant and that the sum of

N500,000.00 was given to her in cash by the Defendant.

The PW2 further stated that she and Mr. Leo Umeh, never met

any Independent National Electoral Commission official with the

Defendant, and that she never gave any Independent National

Electoral Commission official the sum of N4,500,000.00 or any

other money as alleged by the Defendant, neither did she

execute any memorandum of understanding with anybody in

this case.

Testifying further, the PW2 stated that she never requested to

meet the Defendant on the 5th of November, 2013 at VON

junction, Airport Road, Abuja and that she also did not request

for the Defendant’s cheque book. She denied diverting any

customer’s money from Jabi to her personal use and stated

that the only reason the Defendant issued her the two cheques

was to offset the N10,000,000.00 he owed her when he failed

to secure the contract for Mr. Leo Umeh.

She stated that the second cheque of N8,700,000.00 was re-

issued by the Defendant when upon presenting the first cheque

of N10,000,000.00 for payment, the Bank rejected it on the

ground that it was an old cheque, and that the Defendant dated

the cheques when he issued them. She denied suing

Independent National Electoral Commission staff before any

Court.

The PW2 was duly cross examined by the defence counsel and

she maintained her testimony in her evidence in chief.

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The following exhibits were tendered and admitted in evidence

from the Plaintiff:

1. Exhibit PW1A – FCMB Cheque of N10,000,000.00 dated

10-12-2013.

2. Exhibit PW1B – FCMB Cheque of N8,700,000.00 dated 6-

3-2014.

3. Exhibit PW1C – Petition to the Executive Chairman EFCC

dated 16/04/2014.

4. Exhibit PW1D - Letter of Indefinite Suspension dated 31st

March, 2014.

5. Exhibit PW1E – Letter to the Managing Director/CEO

Platinum Mortgage Bank Ltd dated 28/04/2014.

6. Exhibit PW1F – Statement of Account of Anih Charles &

Cecilia.

7. Exhibit PW1G – Statement of Witness/Accused.

In defence of the suit, the Defendant filed a Statement of

Defence dated 4th December, 2014 and filed on 6th February,

2015. The defence of the Defendant is that it was the Plaintiff

who approached him on the 11th of May, 2013 and requested

his assistance to help her client secure a contract from

Independent National Electoral Commission to build and sell

houses to Independent National Electoral Commission Staff.

That he obliged the request by arranging a meeting between

the parties and Independent National Electoral Commission

officials and that it was only N500,000.00 that was given to him

by the Plaintiff to give to the Independent National Electoral

Commission officials, which he duly delivered to the

Independent National Electoral Commission officials in

accordance with the Plaintiff’s instruction.

In his evidence in chief as DW1, the Defendant stated that he is

a public servant in the office of the President of the Federal

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Republic of Nigeria. That the Plaintiff, who is a fellow chorister

in the church, approached him on 11th May, 2013 and

requested for his assistance to help a client of hers who is a

developer to secure a contract with Independent National

Electoral Commission to build and sell houses to Independent

National Electoral Commission Staff. He stated that the Plaintiff

later brought the developer, Leo Umeh to him and the said Leo

Umeh requested him to use his official position to help him

facilitate the contract in his favour. That he decided to assist

Mr. Umeh and they arranged and met with the Independent

National Electoral Commission officials who requested a very

exorbitant amount in order to facilitate the contract in favour of

the developer. Testifying further, the DW1 stated that they

negotiated with the Independent National Electoral Commission

officials and resolved that the Independent National Electoral

Commission officials would be given houses when they are

built and also given N5,000,000.00 to facilitate the contract.

That they subsequently executed a memorandum of

understanding with the Independent National Electoral

Commission officials and the sum of N5,000,000.00 given to

the Independent National Electoral Commission officials in

cash, out of which N2,500,000.00 and N2,000,000.00 were

personally given by the Plaintiff in instalments and the sum of

N500,000.00 given to him by the Plaintiff to deliver to the

Independent National Electoral Commission officials, which he

did.

It is the evidence of DW1 that on 5th November, 2013, the

Plaintiff requested that they meet at VON junction, Airport

Road, Abuja and that he should bring along his cheque book.

That he met her crying, saying that she had some issues in her

office that bordered on N10,000,000.00 which a customer in

Jabi had given her to deposit for a building and which she had

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diverted to her personal use. That the Plaintiff requested him to

issue her a post dated cheque in order to cover her and to

enable her present same to her bank as evidence that she was

expecting money, and that she, being a member of his choir in

the church, he obliged her request.

He stated further, that on 4th March, 2014, the Plaintiff came to

his office and requested that he gave her another cheque of

N8,700,000.00 as the one of N10,000,000.00 which did calm

her employers down had expired and she needed another one

to show someone who was helping her to cool the tension in

her office. That since she was faithful in not presenting the first

cheque for payment, he did not hesitate to give her the second

cheque but that he did not date it. That contrary to the

assurance given by the Plaintiff, she presented the cheque for

payment and when his account officer called him to authorize

payment, he raised alarm and instructed them not to pay, and

that the Plaintiff refused to answer his calls afterwards.

The DW1 maintained that he does not owe the Plaintiff any

money. That the money given to the Independent National

Electoral Commission officials was N5,000,000 as facilitation

fee. That out of furry for his inability to use his office to recover

the money, the Plaintiff reported the matter to Lugbe Police

Station where the matter was investigated and it was found that

the Plaintiff could not substantiate her N10million claim. Under

cross examination by Plaintiff’s counsel, the DW1 denied

receiving any money from the Plaintiff. When asked the

circumstances under which he issued the cheque, Exhibit

PW1A, the DW1 stated that the Plaintiff approached him on

11th November, 2013, on an issue that had to do with

misappropriation of funds in her office. That she later called him

in the evening of the same day and requested him to meet her

at VON junction with his cheque booklet, and that when he got

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there, she told him that she had issues with a customer’s

N10,000,000.00 and then convinced him to issue him cheque

which will not be presented to the bank but that will only show

that she was expecting money from somewhere. That he

decided to be careful with the cheque and then cancelled out 3

zeros so that the cheque would not be presented and that the

cheque was never presented till date.

Answering further, he stated that when he got wind that the

Plaintiff wrote the N10,000,000.00 completely with blue pen

and tried to forge his signature, he reverted to his parish priest

and explained the matter to him. That when the parish priest

asked him on what strength he would give the Plaintiff such

protection he reported to the priest about the Plaintiff’s sexual

harassment which the Defendant has on video. He stated that

the priest instructed him to refund the N5,000,000.00 expended

by Mr. Leo Umeh in trying to procure the contract since he, the

Defendant was part of the negotiation.

Still answering, he stated that after paying N1.3m to the

account provided by the Plaintiff, the Plaintiff came to his office

and told him that Mr. Umeh had intervened on her behalf and

accepted that the N1.3m be paid to the bank instead of being

paid to him. That Mr. Umeh advised her to get another cheque

of N8,700,000.00 from the Defendant and that he accordingly

issued the cheque to her without dating or signing same.

Still under cross examination, the DW1 denied making the

statement, Exhibit PW1G to the Police, but stated that he did

not have the Police report supporting his assertion that the

Police found that the Plaintiff could not substantiate her claim

for N10m.

No exhibit was received in evidence for the defence.

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Following the Defendant’s delay in filing his final written

address at the end of evidence, the Plaintiff filed and served

her own written address ahead of the Defendant.

Learned counsel for the Plaintiff, Gabriel Okpata, Esq., in his

final written address raised a sole issue for determination,

namely;

“Whether the Plaintiff has proved her case and

entitled to judgment from the credible and admissible

evidence adduced before the Honourable Court?”

He submitted that the law is that he who asserts must prove his

assertion except where his assertion is admitted or not

effectively denied by the adverse party, and that the Plaintiff

herein has proved her case by oral and documentary evidence.

He referred to Bello v. Gov. Gombe State (2016) 8 NWLR

(Pt.1514) 219 at 279.

He contended that the Plaintiff pleaded Exhibit PW1G and led

evidence on same, which evidence the Defendant could not

discredit. He submitted that the failure of the Defendant to

specifically deny the facts contained in paragraph 20 of the

Statement of Claim regarding the making of Exhibit PW1G, was

an admission.

Learned counsel further argued that it was contradictory of the

Defendant to state in his witness statement on oath that he did

not owe the Plaintiff any money, and yet admitted under cross

examination that he paid money to the Plaintiff at the Police

Station and also confirmed that he paid some sums of money

to the Plaintiff’s Guaranty Trust Bank Account on various dates

as reflected in exhibit PW1F. He submitted that the Defendant

cannot say in his evidence in chief that he does not owe the

Plaintiff, yet after issuing the first cheque, Exhibit PW1A on 10th

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December, 2013, he started to pay money into the Plaintiff’s

account from 30th January, 2014 as contained in Exhibit PW1F.

He submitted further, that the circumstances that led to the

issuance of Exhibits PW1A and PW1B as outlined by the

Defendant in his evidence in chief and at cross examination,

are inconsistent, and therefore, cannot avail the Defendant,

Plaintiff counsel maintained that parties are bound by their

pleadings. Relying on the case of Registered Trustees of

Brotherhood of Cross and Star v. Edet (2016) 5 NWLR (Pt

1505) 387 at 403, learned counsel submitted that the

Defendant has not supported his pleadings with any evidence

and as such, his case must fail.

While concluding that the Plaintiff has proved her case on the

preponderance of evidence, learned counsel urged the Court to

resolve all the conflicting evidence and contradictions in the

evidence of Defendant in favour of the Plaintiff and enter

judgment in her favour.

Also in his reply to the Defendant’s final written address,

Plaintiff’s counsel submitted that the two factors constituting

cause of action as enunciated in the case of Bakare v. NRC

cited by defence counsel, are indeed present in the Plaintiff’s

statement of claim. That from the claims and averments in the

statement of claim, the Plaintiff has a cause of action against

the Defendant.

Learned counsel further contended that from the statement of

the Plaintiff, the N10,000,000.00 given to the Defendant was

his fee as charged to facilitate and secure a contract and not to

influence Independent National Electoral Commission officials

and the Defendant having failed to keep his part of the contract,

the Plaintiff demanded a refund of the money of which the

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Defendant has now paid a total of sum of N2,700,000.00

leaving out the sum of N7,300,000.00 as the res.

Learned counsel also submitted that the cases of Ekwunife v.

Wayne (West African Ltd) (supra) and Alao v. ACB (supra)

cited by the Defence counsel on unenforceability of illegal

contract are inapplicable to the instant case as the contract

between the Plaintiff and the Defendant was not illegal and the

money given to the Defendant was not meant to bribe or

influence Independent National Electoral Commission officials.

He posited that a person who benefitted from a contract cannot

canvass the nullity of the contract. He referred to B.B. Apugo

& Sons Ltd v. O.H.M.B. (2016) 13 NWLR (Pt 1529) 206 at

339-240.

Learned counsel further submitted that a person intending to

raise a defence of illegality must specifically plead and adduce

evidence in proof of same; and that the Defendant failed to do

this. He relied on A.I.C. Ltd v. NNPC (2005) 1 NWLR (Pt 937)

563 at 584-585.

Replying to the Defendant’s issue two for determination,

learned counsel contended that by the exhibits tendered by the

Plaintiff, she was able to prove the fraud alleged against the

Defendant. He referred specifically to Exhibits PW1A, PW1B,

PW1C, PW1F and PW1G.

Learned counsel for the Defendant, Val Igboanusi, Esq., in his

own final written address raised two issues for determination, to

wit;

a) Whether the Plaintiff has a cause of action and if he

does, if the cause of action is enforceable in the Court

of law or whether the transaction of the parties is

tainted with illegality and therefore unenforceable?

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b) Whether the Plaintiff can be said to have proved his

case on the balance of probability considering the

issue of fraud raised by him in his statement of claim

and so entitled to judgment?

Arguing issue (a) learned counsel submitted that a cause of

action determines the claim of a Plaintiff and the jurisdiction of

the Court, and is dependent on the circumstances of each

particular case. He referred to Nwaogwugwu v. Pres. FRN

(2007) 6 NWLR (Pt1031) 237; Bakare v. NRC (2007) 17

NWLR (Pt 1064) 606.

Learned counsel argued that from the claims of the Plaintiff the

Plaintiff disbursed money to facilitate a contract and to

influence Independent National Electoral Commission officials.

He contended that the purpose of the parties was to do an

illegal act or an act that is against Public Policy, but then

submitted that there was no wrong act done by the Defendant.

He further argued to the effect that a communal reading of

paragraphs 3 and 6 of the statement of claim, paragraph 7 of

the statement of defence and paragraphs 4 of Exhibit PW1E

reveals that the consensus ad idem between the parties was to

facilitate the contract. He therefore submitted that to facilitate a

contract means to influence or give bribe to obtain contract.

That it is illegal and that any contract that is based on illegality

is unenforceable in law.

The learned counsel further submitted that a contract that is ex-

facie illegal will not be enforced by the Courts. He referred to

Ekwunife v. Wayne (West African Ltd) SC 200 (1989); Alao

v. ACB (1998) 2 SCNJ P.17 at 25.

He urged that both parties having performed a wrongful act,

there cannot be said to be a wrong done by the Defendant to

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the Plaintiff or a consequential damage occasioned to the

Plaintiff, and that indeed, there is neither a contract nor cause

of action that can be said to be enforceable. He urged the Court

to dismiss the case of the Plaintiff as the same is tainted with

illegality.

Arguing issue (b) on “Whether the Plaintiff can be said to have

proved his case on the balance of probability, considering the

issue of fraud raised by her in her statement of claim and so

entitled to judgment”, learned counsel submitted that the entire

evidence of PW1 was hearsay evidence and cannot be

reasonably relied on by the Court as such evidence is

inadmissible by virtue of Sections 37 and 38 of the Evidence

Act, 2011.

He further contended that the evidence of the Plaintiff under

cross examination that the money she expended was for the

Defendant to use his position to secure the Independent

National Electoral Commission contract, shows that it was a

wrongful act and ex-facie illegal, and that as such, she cannot

be said to have proved her case on the preponderance of

evidence.

Arguing further, learned counsel relied on Umaru v. State

(2016) All FWLR (Pt 1645) 1668 to submit that the Plaintiff

failed to prove the case of fraud beyond reasonable doubt. He

urged the Court in conclusion to hold that the Plaintiff has not

established any legal right and to dismiss the case of the

Plaintiff with substantial cost.

From the pleadings and evidence led in this case, and taking

into cognisance the submissions of both counsel in their

respective final written addresses, I have distilled the following

two issues which I consider as germane in the determination of

this suit, namely;

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1. Whether the case of the Plaintiff disclosed an

enforceable cause of action against the Defendant?

2. Whether the Plaintiff is entitled to her claims before

this Court?

ISSUE ONE:

It is trite that cause of action refers to the fact or set of facts

which gives a person a right to judicial relief.

The Supreme Court, per Onu JSC, in Adesokan & Ors v.

Adegorolu & Ors (1997) LPELR-151 (SC), defined cause of

action thus;

“...the sum total of the wrong complained of, which

impelled a Plaintiff to go to Court to seek redress is

the cause of action.”

Also in the case of Hon. Farouk Lawan v. Zenon Petroleum

& Gas Ltd & Ors, Suit No. CA/A/89/2013, the Court of Appeal

per, Ekanem, J.C.A, held that;

“... a cause of action refers to the entire set of facts

that gives rise to an enforceable right and it

comprises of every fact which if traversed, the

Plaintiff must prove to entitle him to judgment....

To determine whether a suit disclose a cause of

action, resort must be had only to the Writ of

Summons and the statement of claim.”

From the statement of claim, the summary of the facts of

Plaintiff’s case is that she paid N10,000,000.00 to the

Defendant to facilitate a contract, which service the Defendant

failed to carry out. The Defendant, having refunded a total sum

of N2,700,000.00, the Plaintiff is therefore claiming the refund

of the balance of N7,300,000.00.

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There are two elements of a cause of action, namely, the

wrongful act of the Defendant which gives rise to the cause of

action and the consequent damage.

The wrongful act deducible from the averment in the statement

of claim is the failure of the defendant to render the service for

which he received the sum N10,000,000.00 and the

consequent damage is the loss of the said money in addition to

the suspension from her job consequent upon the report to her

employers by the owner of the money.

It is important to state at this point that the weakness or

perceived weakness of a Plaintiff’s claim is not to be

considered at the point of determining whether or not a suit

discloses a cause of action. See Hon. Farouk Lawan v. Zenon

Petroleum & Gas Ltd & Ors (supra).

The question then is, whether a claim for the refund of money

paid for a service which was not rendered is an enforceable

claim? My answer is in the affirmative. See Star Finance &

Property Ltd & Anor v. NDIC (2012) LPELR-8394 (CA).

Let me pause at this point to state that the arguments of

learned counsel for the Defendant in his final written address

discloses a misconception of the claim of the Plaintiff. The

claim of the Plaintiff is for the refund of money had and

received and not for the enforcement of a contract. The cases

cited by the learned counsel on the unenforceability of illegal

contract are therefore good in respect of the issue they dealt

with, but are certainly not applicable in the instant case. I am

therefore of the considered view that the case of the Plaintiff

discloses a cause of action that is enforceable having raised

questions which are fit for determination by this Court, and I so

hold. Furthermore, like the statement of claim, a statement of

defence should aver facts that should defeat the claimants

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claim and should also contain other particulars such as fraud as

suggested in the written address of the Defendant. This would

enable the Plaintiff to reply to it. Submitting on the final written

address that the contract is suggestive illegality and of fraud

without stating the facts therefore, the statement of defence

portrays the address of counsel to constitute pleadings. No

matter the quality of final written address and its delivery, such

address will not affect the quality of evidence in this case.-

Memi v. The State (1994) 10 SCNJ r.20,21,22,23.

ISSUE TWO.

The next issue for consideration is whether the Plaintiff is

entitled to her claims before this Court?

To be entitled to his claim, the law is that a claimant must prove

his case on a preponderance of evidence to the satisfaction of

the Court. The burden is on him who asserts to prove his

assertions and it is only when that burden of proof is

discharged that the burden to dislodge the assertion shifts to

the other party. The Plaintiff must therefore succeed on the

strength of his own case and not on the weakness or absence

of defence. See Edosa c. Ogiemwanre (2010) LPELR-8618

(CA); Anene & Ors v. Okoye (2013) LPELR-21877 (CA).

In the instant case, the main claim of the Plaintiff is for “An

Order of this Honourable Court compelling the Defendant to

pay the Plaintiff the sum of N7,300,000.00 (Seven Million,

Three Hundred Thousand Naira) only, being outstanding

balance of the N10,000,000.00 (Ten Million Naira) only, the

Defendant collected from the Plaintiff as a facilitator for the

contract of building houses for Independent National Electoral

Commission staff.”

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The Plaintiff’s assertion is that on the Defendant’s demand, she

paid the sum of N10,000,000.00 to the Defendant for the

facilitation of a contract to build houses for Independent

National Electoral Commission staff. She asserted that she

later found out that there was no such contract in existence,

and therefore, concluding that she had been defrauded by the

Defendant, she demanded for the refund of her money.

According to the Plaintiff, the Defendant made some attempts

to refund the money and has succeeded in refunding only

N2,700,000.00 leaving a balance of N7,300,000.00 which the

Plaintiff is now claiming before this Court.

The Defendant denied receiving N10,000,000.00 from the

Plaintiff. Stating that he was only given N500,000.00 by the

Plaintiff to deliver to the Independent National Electoral

Commission officials.

The denial of the Defendant notwithstanding, the exhibits

received in evidence from the Plaintiff proves otherwise.

Exhibit PW1A is a cheque of N10,000,000.00 which the Plaintiff

claimed the Defendant issued in repayment of the money. The

Defendant admitted issuing the cheque but explained that it

was meant to provide a cover to the Plaintiff over a case of

misappropriation of fund and was not meant to be presented for

payment by the Plaintiff.

There is also Exhibit PW1B, another cheque of N8,700,000.00

issued by the Defendant to the Plaintiff. In his pleading and

evidence in chief, the Defendant stated that on the 4th of March,

2014, after the first cheque of N10,000,000.00 had expired, the

Plaintiff approached him for another cheque of N8,700,000.00

to help cool the tension in her office. He specifically stated that

he believed the Plaintiff since she was faithful to the first

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cheque and as such, he did not hesitate to give her the second

cheque.

Under cross examination however, the Defendant stated that

while writing the first cheque he crossed out the last three digits

and that the Plaintiff later wrote the N10m in full and tried to

forge his signature on the cheque. That when he got wind of

this development, he reported the matter to his parish priest

and told his parish priest about Plaintiff’s sexual harassment, a

video of which was in his possession. The Defendant further

stated that his parish priest instructed him to pay back

N5,000,000.00 to the Plaintiff and after he had paid

N1,300,000.00, the Plaintiff told him that Mr. Leo Umeh has

intervened on her behalf and requested for another cheque, in

his word; “That is the difference of N8.7m”.

This story does not add up. If he was paying back N5m, N8.7m

cannot be the difference after N1.3m had been paid. Rather,

N8.7m will be the difference of N10m after N1.3m had been

paid.

Also, it is inconceivable that a person will still issue a cheque of

N8.7m to a person who had previously tried to forge his

signature on another cheque and who is harassing him

sexually, only as a protection to that other person. Listening to

the testimony of the Defendant as DW1 and watching his

demeanour in the witness box, I had no difficulties concluding

that the Defendant was not a witness of truth.

From Exhibit PW1F, it is evident that between 30th January,

2014 and 4th

of March, 2014 when the cheque of

N8,700,000.00, Exhibit PW1B, was issued, the Defendant had

paid a total sum of N1,300,000.00 to the Plaintiff’s account. The

cheque of N8,700,000.00 is clearly the difference between the

“debt” of N10,000,000.00 and the already paid N1,300,000.00.

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This clearly indicates an admission of an obligation to refund

the sum of N10,000,000.00 by the Defendant to the Plaintiff.

From Exhibit PW1F, the Defendant made other subsequent

payments into the Defendants account after issuing the

cheque, Exhibit PW1B, which all together sums up to

N2,200,000.00.

Under cross examination still, the Defendant admitted he paid

additional N500,000.00 in cash to the Defendant at the Police

Station, bringing the total amount paid by the Defendant to

N2,700,000.00.

Exhibit PW1G is a certified true copy of statement made to the

Police by the Defendant. In the said exhibit, the Defendant

acknowledged having given the sum of N2,700,000.00 and

then proceeded to tabulate how he was going to pay the

outstanding balance of N7,300,000.0.

The Plaintiff pleaded Exhibit PW1G in paragraph 20 of

statement of claim. The Defendant did not deny making same

in his evidence in chief but when confronted with it during cross

examination, in his characteristic manner, he denied making

the said Exhibit PW1G.

The Defendant admitted that the matter was investigated by the

Police and having also admitted that he paid N500,000.00 to

the Plaintiff at the Police station, that invariably means he made

statement(s) to the Police which is a procedural necessity. If he

is denying making Exhibit PW1G as he tried to do under cross

examination, then, he has the burden to produce the statement

he made to the Police, but this he failed to do. I therefore

accept Exhibit PW1G as the statement of the Defendant in the

absence of any evidence to the contrary.

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Taking jointly Exhibits PW1A, PW1B, PW1F and PW1G in

conjunction with the oral evidence of the Plaintiff, the inevitable

conclusion to which I have arrived is that the Defendant indeed

received the sum of N10,000,000.00 from the Plaintiff and has

subsequently refunded a total sum of N2,700,000.00 leaving a

balance of N7,300,000.00.

I am therefore, of the considered view that the Plaintiff, has by

credible and reliable evidence tilted the scale in her favour.

Having discharged the onus of establishing her assertions by

credible evidence, the onus shifted to the Defendant to dislodge

the evidence so led by the Plaintiff, but the Defendant failed to

discharge this burden.

Learned counsel for the Defendant strenuously argued that

since the money given the Defendant was to facilitate a

contract, it amounts to illegal contract, as according to him, to

facilitate means to give bribe. I do not agree with the

submission of the said learned counsel. The word, “facilitate”

on its own, does not connote anything illegal. It depends on the

circumstances of the use of the word. The claim of the Plaintiff

is that the Defendant collected the money from the Plaintiff as a

facilitator for a contract of building houses for Independent

National Electoral Commission staff.

To facilitate according to the Oxford Advanced Learners

Dictionary, 6th Edition, is “to make an action or a process

possible or easier”.

The same Dictionary defines a “facilitator” as “a person who

helps somebody do something more easily by discussing

problems, giving advice...”

To pay a person a fee to facilitate something, on the face of it,

cannot be said to be illegal. The Plaintiff demanded for the

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refund only when she discovered that there was no contract to

facilitate as represented by the Defendant.

In the case of Nekpenekpen v. Egbemhonkhaye (2014)

LPELR-22335 (CA), the Court of Appeal, per, Yakubu, JCA

held thus;

“...However, where a contract or an agreement is not

ex facie illegal and the question of illegality depends

on the surrounding circumstances, then as a general

rule, the Court will not entertain the question of

illegality, unless it is raised in the pleadings of the

party that is complaining of illegality and in such

circumstances, evidence will be led on it, but if

evidence is led in support of unpleaded illegality,

such evidence goes to no issue”.

The question of illegality was not pleaded by the Defendant

neither was any evidence led in that regard. However, learned

counsel for the Defendant, as an afterthought chose to raise

the issue in his final written address. Evidence led on facts not

pleaded go to no issue, much less argument of counsel in final

written address on unpleaded facts and facts not supported by

evidence.

Having not pleaded illegality by the Defendant, and the claim of

the Plaintiff disclosing no illegality ex facie, I will decline from

entertaining the question of illegality at this stage of judgment.

From the foregoing considerations, I am of the considered view

that the Plaintiff is entitled to her claim having established same

by evidence, and I so hold.

I will however, hasten to state that relief 2 is refused.

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Judgment is entered for the Plaintiff, and the Court orders as

follows:

a) The Defendant is ordered to pay the Plaintiff the sum of

N7,300,000.00 (Seven Million, Three Hundred Thousand

Naira) only, being the outstanding balance of the

N10,000,000.00 (Ten Million Naira) only, the Defendant

collected from the Plaintiff as a facilitator for the contract

of building houses for Independent National Electoral

Commission staff with immediate effect.

b) The sum of N100,000.00 (One Hundred Thousand Naira)

as general damages to be paid to the Plaintiff.

c) Cost of N200,000.00 (Two Hundred Thousand Naira)

being out of pocket expenses.

HON. JUSTICE A. O. OTALUKA 3/5/2017.