The appellant was plaintiff in Suit No. ID567M/96 in which the 1st
respondent was a defendant. Appellant’s counsel, purportedly without the
consent of the appellant negotiated a comprise with the defendant and the written
compromise was entered as judgment of the Lagos State High Court. Not
satisfied with the terms of the consent judgment the appellant filed against the 1st
respondent and the Chief Registrar of the High Court of Lagos State Suit No.
ID/1948/99 and claimed of the defendant as follows:
“1. A DECLARATION that the consent judgment of the Ikeja High
Court in suit ID/567M/96 between BESSOY LIMITED
V. HONEY LEGON (NIG) LTD dated the 28th day of July 1998

is not enforceable in line with the purported “Terms
of Settlement” filed and dated the 24th day of July 1998.
2. A DECLARATION that the plaintiff did not consent to nor
executed the said terms of settlement neither was it informed
as to its contents nor did the plaintiff instruct any counsel to
execute same on its behalf.
3. A DECLARATION that the unilateral decision by the plaintiff’s
counsel (then) in the said suit to enter into terms of settlement
and subsequently consent judgment outside the plaintiff’s
express instructions and without authorization of the plaintiff
so to do, does not amount to the consent of the plaintiff and
therefore does not bind the plaintiff.
4. A DECLARATION that the said judgment dated the 28th
day of July 1998 was delivered without jurisdiction and or
was obtained by fraud and collusion.
5. A DECLARATION that the plaintiff rather than the
defendant is the one entitled to all that parcel of land situated
at Ojota Ogudu Phase II know and referred to as Petrol Filling
Station Ojota Ogudu Phase II Scheme in Somolu Area of Lagos
State containg an area of approximately 3027.093 square meters
more particularly delineated and verged “PINK” on survey Plan No.
AT/LA/1743 and covered by an irrevocable power of attorney dated
28th day of April 1999 from the Registered Trustees of Apostolic
Church to the Plaintiff and further reinforced vide the judgment of
Hon. Justice A.C. Adeyinka in SUIT. ID/567M/96 delivered on the
16th day of January, 1997 giving the plaintiff powers to recover the
said land.
6. A DECLARATION that the purported Registration of the
same land as part of the land registered as No. 98 at page 98 in
volume 1999 AH of the Lagos State of Nigeria Land Registry
Office, Ikeja, Lagos despite the subsisting interest of the plaintiff
thereto is null and void and of no effect.

7. AN ORDER setting aside the afore stated terms of settlement
dated the 24th day of July 1998 and the said consent judgment
dated the 28th day of July 1998.
8. AN ORDER of perpetual injunction restraining the defendants,
their agents, servants, subordinates, officers and privies from
disturbing the possession, title and or other proprietary rights
of the plaintiff either by way of execution or other enforcement
of the said IKEJA HIGH COURT Judgment dated the 28th day
of July 1998 or by other entry by the defendants, their agents,
servants, subordinates, officers and privies of the said land
aforementioned.”
Upon service on the 1st respondent the appellant’s statement of claim and
without filing its statement of defence 1st Respondent filed a motion on notice on
15th October 1999 dated the same date pursuant to Order 23 Rule 4 of the High
Court of Lagos State (Civil Procedure) Rules and the inherent jurisdiction of the
court praying the court for an order dismissing the suit or alternatively an order
striking out the suit. The grounds set in the motion paper were “(1) the suit is an
abuse of process (2) the statement of claim discloses no reasonable cause of
action and the plaintiff’s action is frivolous and vexatious (3) this court lacks
jurisdiction to entertain the suit.” Affidavits were filed and exchanged. The
motion was argued and in a ruling dated 3rd day of May 2006 but delivered on
20th June 2006 the trial judge adjudged as follows:
“I accordingly hold that the plaintiff has not proved any fraud by
either his erstwhile counsel or the defendant or its counsel in this
case to warrant setting aside the consent judgment entered into by
Hon Justice A. F. Adeyinka on 16/11/97 in Suit No. ID/567M/96.
I according uphold the preliminary objection of the defendant and
dismiss the action of the plaintiff.”
Dissatisfied with this ruling the appellant filed this appeal challenging the
said ruling on 5 grounds of appeal set out in its notice of appeal to wit:

“GROUND ONE
The judgment is against the weight of evidence
GROUND TWO
The learned trial judge misdirected himself in law in holding that “the
respondent/plaintiff (now appellant) filed no counter affidavit to the
affidavit of the 1st defendant/applicant” and by reason thereof further held
that the said defendant/applicant’s affidavit and “its averments stand
unchallenged and uncontradicted” – which formed the major basis of the
lower Court’s Ruling against the appellant presently being complained of
in this appeal.
GROUND THREE
The learned trial judge of the lower court erred in law when he held that “I
accordingly hold that the plaintiff has not proved and fraud by either his
erstwhile counsel or the defendant or its counsel in the case to warrant
setting aside the consent judgment.”
GROUND FOUR
The learned trial court erred in law by holding that “once a client has
retained counsel he is bound by the counsel’s agreement however much he
may disapprove” and that it has no jurisdiction to set aside the consent
judgment being complained of.
GROUND FIVE
The learned trial judge misdirected himself in law when he dismissed the
respondent/plaintiff’s (now appellant’s) suit by an application by way of a
Preliminary Objection brought under Order 23 Rule 4 of the Lagos State
High Court Civil Procedure Rules and under the Inherent Jurisdiction of
the Court.”
The appellant prayed this court to (i) set aside the decision of the lower court.

(ii) invoke its powers under S.16 of the Court of
Appeal Act by rehearing the matter
(iii) in the alternative order a retrial.
From the grounds of appeal set out above, the appellant distilled three
issues for determination to wit:
“a. Whether the appellant as plaintiff in the court below had
duly taken the appropriate legal steps required of a party
aggrieved and/or protesting his non-consent to a purported
consent judgment obtained by fraud, collusion, misrepresentation
and non-consent?
If the answer is in the affirmative, is the statement of claim
not the relevant reference point for the court to ascertain the
disclosure of his cause of action and further more is the court not
entitled to hear the action on its merit so as to enable him
prove the cause(s) of his complaint by facts and evidence in a proper
trial.
b. Whether the court below was right in ignoring the counter
affidavit and the further affidavit to the said counter affidavit
both of which were duly filed on behalf of plaintiff while
determining the 1st respondent’s application dated the 15th
October 1999 consequent upon the lower court dismissed the
plaintiff/appellant’s suit? If the answer is in the negative, does
same not amount to the breach of fair hearing – i.e. the principle of
AUDI ALTERAM PARTEM?
c. Whether the 1st respondent as the 1st defendant in the court
below, without filing any statement of defence, is entitled to
raise by way of an application under ORDER 23 RULE 4 of the
High Court of Lagos State Civil Procedure Rules, Cap 61
of 1994 and under the inherent jurisdiction of the court, a
preliminary objection to the jurisdictional competence of court and
on the basis that the statement of claim discloses no reasonable
cause of action, particularly since ORDER 23 RULE 1 has abolished
DEMURRER and substituted therefore ORDER 23 RULES 2, 3

and 4 under which a preliminary point of law can be raised after both
statement of claim and statement of defence have been filed without
any need to reviving the extinct plea of demurrer which has been
buried.”
From the same grounds of appeal the respondent has distilled two issues for
determination to wit:
“1. Whether a defendant can competently file an application
seeking to dismiss a plaintiff’s suit on the grounds of being
an abuse of the process of the court and that the court lacked
jurisdiction to entertain it without first filing a statement of
defence?
2. Whether on the facts of this case as contained on the printed
record the court below was right in law in dismissing the
plaintiff’s action.”
I consider the issues distilled by the appellant as more detailed and
apposite. I shall therefore take this appeal on those issues but I shall take them
from the rear i.e. to say I shall first consider issue (c) then issue (b) and finally
issue (a).
ISSUE (C) “Whether the 1st respondent as the 1st defendant in the court
below, without filing any statement of defence, is entitled to raise by way
of an application under ORDER 23 RULE 4 of the High Court of Lagos
State Civil Procedure Rules, Cap 61 of 1994 and under the inherent
jurisdiction of the court, a preliminary objection to the jurisdictional
competence of court and on the basis that the statement of claim discloses
no reasonable cause of action, particularly since ORDER 23 RULE 1 has
abolished DEMURRER and substituted therefore ORDER 23 RULES 2, 3
and 4 under which a preliminary point of law can be raised after both
statement of claim and statement of defence have been filed without any
need to reviving the extinct plea of demurrer which has been buried.”
On this issue the appellant has strenuously argued that the application
determined by the court below was indeed a demurrer proceeding which had been

abolished in Lagos State by Order 23 Rule 1 of the High Court (Civil Procedure)
Rules 1994 in that the application sought a determination of the suit in which a
statement of claim had been filed without the applicant filing a statement of
defence. He argued that what was open to the applicant pursuant to Order 23
Rules 2, 3 and 4 of the High Court (Civil Procedure) Rules of Lagos State 1994
was the procedure in lieu of demurrer provided therein which requires the
defendant to file a statement of defence and setting out therein legal defences
which the defendant may thereafter seek to argue before evidence is led. For ease
of appreciation Order 23 Rules 1, 2, 3 and 4 of the Lagos State High Court (Civil
Procedure) Rules 1994 are set out hereunder:-
“Order 23 Rule 1. No demurrer shall be allowed.
2. Any party shall be entitled to raise by his pleading any
point of law and, unless the court or a judge in
chambers otherwise orders, any point so raised shall be
disposed of by the judge who tries the cause at or
after the trial.
3. If, in the opinion of the court or a judge in chambers,
the decision of such point of law substantially disposes
of the whole action, or of any distinct cause of action,
ground of defence, set-off, counter –claim, or reply
therein, the court or judge may thereupon dismiss the
action or make such other Order therein as may be just.
4. The court or a judge in chambers may order any
pleading to be struck out, on the ground that it discloses
no reasonable cause of action or answer, and in any
such case or in case of the action or defence being
shown by the pleadings to be frivolous or vexatious, the
court or judge in chambers may order the action to be
stayed or dismissed, or judgment to be entered
accordingly, as may be just.”

It is clear from Rule 1 of Order 23 that the procedure known as demurrer
has been abolished in the Lagos State High Court. Rules 2 and 3 of Order 23
provide for a procedure in lieu of demurrer. This new procedure however is
watered down by Rule 4 which provides that the court has the right to strike out
any PLEADING which does not disclose a reasonable cause of action. An
application to strike out a pleading pursuant to Order 23 Rule 4 of the Lagos State
High Court (Civil Procedure) Rules 1994 because the pleading does not disclose a
reasonable cause of action does not require the applicant to have filed the
defendant’s statement of defence before so applying. I refer to Bolaji vs
Bamgbose (1986) 4 NWLR (pt 37) 632. This is particularly so because when a
party asks that a pleading be struck out for not disclosing a reasonable course of
action, he is in fact saying that there is a want of cause of action jurisdiction in the
suit. It is trite law that a defendant is entitled to raise issues pertaining to
jurisdiction whether it is cause of action jurisdiction or adjudicatory jurisdiction at
any stage of the proceedings whether before or after the exchange of pleadings. It
is immaterial that the rules of court require such a defence to be embedded in the
statement of defence. I refer to Popoola Elabanjo & Anor vs Chief Mrs.
Ganiat Dawodu (2006) 15 NWLR (pt.1001) 76SC. The application giving rise
to the ruling being challenged is founded on three legs – want of reasonable cause
of action, want of jurisdiction and Abuse of process.
In none of these grounds is the respondent required to file a statement of
defence before filing its application. This issue is resolved in favour of the
respondent.
“ISSUE (B) Whether the court below was right in ignoring the counter
affidavit and the further affidavit to the said counter affidavit both of
which were duly filed on behalf of plaintiff while determining the 1st
respondent’s application dated the 15th October 1999 consequent upon the
lower court dismissed the plaintiff/appellant’s suit? If the answer is in the

negative, does same not amount to the breach of fair hearing – i.e. the
principle of AUDI ALTERAM PARTEM?”
On issue “B” the appellant argues that in response to the affidavit in support of
the respondent’s application, it had filed a counter affidavit and a further counter
affidavit joining issues with the 1st respondent. Both affidavits were ignored by
the trial court in determining the application. The appellant is right. The two
affidavits referred to by the appellant are clearly disclosed in the case file which
also show they were filed before the motion was argued. But in his ruling the
trial judge stated specifically that the plaintiff filed no counter affidavit. This is
clearly not true. This omission is fundamental. It affects all conclusions of the
trial judge requiring affidavit evidence to establish. The application was founded
on three legs – want of reasonable cause of action, want of jurisdiction and abuse
of courts process. While want of reasonable cause of action and want of
jurisdiction do not need affidavit evidence to establish, and can be determined
only on the plaintiff’s statement of claim, abuse of process cannot be so
determined without affidavit evidence presenting the facts that constitute the
abuse. This omission affects the fundamental right of the appellant to be heard
and all conclusions by the trial judge on the affidavit in support of the motion are
hereby vacated. Because abuse of process cannot be determined without
reference to the affidavit in support of the application, no finding relating to abuse
of process by the trial judge can stand and all such findings are hereby vacated.
“ISSUE (A) Whether the appellant as plaintiff in the court
below had duly taken the appropriate legal steps required of
a party aggrieved and/or protesting his non-consent to a purported consent
judgment obtained by fraud, collusion, misrepresentation
and non-consent?
If the answer is in the affirmative, is the statement of claim not the
relevant reference point for the court to ascertain the disclosure of his cause
of action and further more is the court not entitled to hear the action on its

merit so as to enable him prove the cause(s) of his complaint by facts and
evidence in a proper trial.”
On this issue the appellant has argued most persuasively that the appellant
in filing his suit seeking to avoid the consent judgment met with all the technical
requirements of the law and was entitled to have his case heard on the merit. An
aggrieved litigant has two methods of challenging a consent judgment which he
claims was obtained by fraud or mistakenly entered by the judge on the basis of a
fraudulent misrepresentation. He can either appeal against the judgment or file a
fresh suit asking the court to vacate the consent judgment. I refer to Vulcan
Gases Ltd vs. G.F. Ind. A. G. (2001) 9 NWLR (pt 719) 610 SC. Superior courts
of record have the inherent powers to set aside their judgments in the following
circumstances:
(a) If the judgment is obtained by fraud or deceit.
(b) If the judgment is a nullity such as when the court itself is not
competent
(c) If the court was misled into giving the judgment under a mistaken
belief that the parties had consented to it.
(d) If the judgment was given in the absence of jurisdiction.
(e) If the procedure adopted was such as to deprive the decision or
judgment of the character of a legitimate adjudication. See A.T. Ltd
vs. A.D.H. Ltd (2007) 15 NWLR (pt. 1056) 119 SC
In the instant case the plaintiff alleged that consent judgment was obtained
from the court below by fraudulent misrepresentation to the court by counsel to
both sides and the 1st respondent that the plaintiff consented to the judgment when
infact it did not. For a matter to go into full hearing as being urged by the
appellant, the case made out by the plaintiff’s pleadings must not only ex facia
exhibit the court’s adjudicatory jurisdiction but its cause of action jurisdiction.

In the instant case the adjudicatory cause of action is not really in issue.
What is in issue is the cause of action jurisdiction. The plaintiff claimed
fraudulent misrepresentation to the trial judge of a consent it never gave. To
establish cause of action jurisdiction therefore, the plaintiff’s pleadings must
prima facie disclose want of consent recognizable by law and fraudulent
misrepresentation by its counsel and the defendant. Did the appellant’s pleadings
meet these requirements? The relevant portions of the statement of claim are re –
produced here under:
“18 That the plaintiff shall contend at the trial that it never
assigned the said property to the 1st defendant and
neither did it authorize any negotiation, compromise
or authorize any counsel to enter or execute any terms
of settlement on the said land with the 1st defendant.
19. The Apostolic Church had no power to assign the said
land to the 1st defendant as at the time it did or at any
time whatsoever in view of the existence of the Power
of Attorney dated the 28th day of February 1989 which
it executed in favour of the plaintiff.
20. That the plaintiff shall also contend that it never instructed
any counsel to enter into any negotiation, compromise
execution of any terms of settlement not was the plaintiff
aware of any such moves until the 10th day of February
1999. (i.e. after seven calendar months upon which it
had been arranged at the back of the plaintiff).
21. The plaintiff did not consent to any such arrangement and
did not appoint any counsel as its agent in all the actions
culminating in the terms of settlement dated the 24th day of
July 1998 and the consent judgment dated the 28th day of
July 1998 in the same Suit No. ID/567M/96.
22. That the plaintiff’s express instruction to all the counsels
that had acted on its behalf in the said land Viz:
Johnson Odionu Esq. and Messrs. Adenugba Adesina &

Co. were limited to litigation and recovering of the said land
from the TRESPASSERS and exacting damages for same no
more and no less.
23. Messrs. Adenugba Adesina & Co., of “Adebanpe House” No.
231 Ikorodu Road, Lagos who were prior to the 20th day of
January 1997 the legal counsel to the plaintiff till the said 28th
day of July 1998 when the said consent judgment was given but
were never mandated to enter into any terms of settlement
dated the 24th day of July 1998 and were never instructed to sign and
execute same on the plaintiff’s behalf and upon which the said
judgment was based and as such are not agents of the plaintiff for the
said illegal transaction.
24. Messrs. Tayo Oyetibo and Co. of 152 Ikorodu Road, next to
“Adebowale House”, Onipan, Lagos were legal counsel to the
1st defendant.
25. The whole transaction yielding to the terms of settlement dated
24th day of July 1998 and culminating into the consent
judgment given on the 28th July 1998 are predicated on
fraudulent misrepresentation, conspiracy, unrpofessionalism,
a collusion and apparent fraud.
26. The particulars of FRAUD are as follows:
(a) The plaintiff never instructed its counsel either verbally
or by writing to negotiate with the 1st defendant (the
instruction was limited to check the trespass as well as
claim damages for the trespass from the 1st defendant).
(b) The decision by the plaintiff’s counsel to negotiate with
the 1st defendant was unilateral and a personal decision since
the plaintiff’s counsel never at any time consulted the plaintiff
nor intimated him of the said terms of settlement dated the 24th
day of July 1998 nor the existence of the said consent
judgment given on the 28th day of July, 1998; seven calendar
months after same was given.
(c) The plaintiff’s counsel compromised the interest of the
plaintiff by arriving at the paltry sum of N2.5 million naira in

total settlement when he knew since 1996 that the value of the
said land was far more than the said sum
(d) That even if N2.5 million is to be taken as full and final
settlements it does not lie on the power of the plaintiff’s
counsel (without express instruction) to determine the value
unilaterally and accept same in full and final settlement on the
plaintiff’s behalf.
(e) That the plaintiff being in Petrol business cannot give away to
another competitor a strategically acquired property for the
same purpose except on the plaintiff’s own terms and not on
the said Lawyer’s terms.
(f) The plaintiff’s counsel without authority signed the said terms
of settlement in the signature COLUMN meant for the
plaintiff.
(g) That the said signature on top of BESSOY Ltd., (in the said
signature column) in the said terms of Settlement dated the
24th day of July 1998 was never at anytime signed and
executed by the plaintiff and was never authorized by the
plaintiff to sign same on its behalf by anybody (the said
lawyer inclusive).
(h) The plaintiff being a Limited Liability company can only sign
and execute such documents either by two of its appointed
Directors or by a Director and the company Secretary – An
uninstructed attorney or Legal Counsel or the counsel’s agent
cannot suffice or become empowered to play that role more so
when counsel to the plaintiff was aware of the existence of a
ruling of the court dated the 16th January 1997 in Suit No.
ID567M/96 which reverted the recovery of the said property
and title of ownership to the plaintiff.
(i) The general action and intendment of the plaintiff’s counsel,
the 1st defendant and its counsel and the Apostolic Church,
through conspiracy, fraud and unprofessionalism is to apply
the instrument of justice in perpetrating an illegality as
follows:

(i) at the time the Apostolic Church purportedly assigned
to the 1st defendant resulting to the Registration as No.
98 at page 98 in Volume 1996 AH at the Lagos State of
Nigeria Land Registry Office, Ikeja, Lagos, the said
Apostolic Church was quite aware that its interest in the
said land of the plaintiff had expired and become extinct
vide the irrevocable Power of Attorney it gave to the
plaintiff dated the 29th day of February 1989 and to
proceed to assign despite this legal disability amounts to
fraudulent misrepresentation and the assignment to the
1st defendant became illegal.
(ii) The 1st defendant and its solicitors being the initiators
and prime beneficiaries of the absurd terms of
settlement never at anytime attempted to ascertain
whether the plaintiff agreed to the said terms of
settlement dated the 24th day of July 1998 culminating
into the consent judgment dated the 28th day of July
1998 but were rather contended with the
misrepresentations of the plaintiff’s counsel and by
reason thereof aided and abetted the illegality.
(iii) The 1st defendant and its solicitors were in constant
receipt of documents emanating from the then
plaintiff’s counsel while Suit NO. ID/567/96 was
subsisting and could therefrom deduce that the
executing signatures rather placed on the top “BESSOY
LTD.” at the signature column were not those of the
plaintiff but those of the plaintiff’s counsel (acting so
without authority).
(iv) By fronting the said signatures as being those of the
plaintiff, the then plaintiff’s counsel’s misrepresentation
in the said terms of settlement dated the 24th day of July
1998 and culminating into the consent judgment dated
the 28th day of July 1998 became apparent as (there was
no mark or notation showing/indicating that he was not
the proper party to execute same).

(j) The plaintiff never asked for an alternative land and the
promise of an alternative land of equal size, location and
dimensions from the Apostolic Church (who illegally and
without the plaintiff’s consent, assigned the plaintiff’s land to
the 1st defendant) and without making this promise as being
part of the said terms of settlement dated the 24th day of July
1998 and culminating into the consent judgment dated the 28th
day of July 1998 makes the conspiracy and fraud a tripartite
arrangement between the 1st defendant, the Apostolic Church
and the then plaintiff’s counsel; (the Apostolic Church not
being a party in the Suit No. ID/567/96).
(k) The said terms of settlement dated the 24th day of July 1998
culminating into the consent judgment of 28th day of July 1998
and the promise of an alternative land was an after thought and
made to defraud the plaintiff of its property if a cursory look is
taken at the then plaintiff’s counsel’s letter dated the 11th
March 1999 asking for the sum of N50,000.00 on behalf of the
Apostolic Church and that unless same is paid to the Apostolic
Church, the church would not execute the instrument of an
alternative land.
(l) The above condition appears puzzling since the Apostolic
Church was not a party to any suit and never made any
monetary demand from the plaintiff (who completed all forms
of payment on the said land since 1977 when the purchase of
the said land was made as well as by the irrevocable power of
attorney dated the 28th February 1989) down till 1999 throws
light into the conspiracy as the tone of this letter even makes
the promise of an alternative land a ruse, an inconclusive and
an indefinite bait.
(m) The haste with which the transaction was completed at the
plaintiff’s detriment was merely 4 days only – (purported
terms of settlement was drafted and signed on the 24th day of
July 1998 and the consent judgment was obtained on the 28th
day of July 1998)
(n) That from the 28th day of July 1998 till the 10th day of
February 1999, a period of about seven calendar months, the

then plaintiff’s counsel did not deem it fit to notify the
plaintiff not only of these transactions but even the existence
of this consent judgment.
(o) The plaintiff became aware of the exact contents of the said
terms of settlement when its present counsel on the 1st day of
June 1999 conducted a search and brought certified true copies
to the consternation of the plaintiff and its management.”
In the instant case the plaintiff had pleaded want of consent to the compromise
that was effected in the case on its behalf by its counsel. It pleaded limiting the
authority of counsel acting on his behalf only to argue the case to judgment and
that it never authorized negotiation. It is clear from the pleadings set out above
that appellant’s counsel was not expressly authorized to negotiate out of court
settlement with the 1st respondent. But nothing in the pleadings suggest that
plaintiff’s counsel was expressly excluded from negotiating the final conclusion
of this litigation. There is nothing apparent ex – facie the pleadings that counsel’s
general or apparent authority to consent to a verdict was limited by the plaintiff.
It is an undisputed fact that compromising his case falls within the general
authority of counsel see Enikpokar vs. Baruwa (1998) 8 NWLR (pt 560) 96,
Adewunmi vs. Plastex (Nig) Ltd (1986) 3 NWLR (pt 32) 767. Where a party
expressly limits the authority of counsel and same is communicated to the other
side, counsel’s action contrary to instructions shall be invalid. It is not suggested
in plaintiff’s pleadings that it ever made such communication to the 1st defendant
now 1st respondent or its counsel. Where counsel, acting in apparent authority but
with want of real consent makes outlandish and ridiculous concessions obviously
injurious and unjust to his client, the court will interfere on behalf of his client,
see Vulcan Gases Ltd. vs. G.F. Ind. A. G. supra. In the instant case the
appellant attacked the sum of N2.5 million negotiated on its behalf as being too
small without setting out in the pleadings what it considers a proper monetary

value of its property. Moreover it was silent as to the value and suitability of the
alternative plot of land offered in addition to the N2.5 million. It cannot be said
ex facie the pleadings that the terms of settlement negotiated by the appellant’s
counsel on its behalf did violence to its interest. It is clear that plaintiff did not
plead such want of consent as can activate the jurisdiction of the trial court to hear
its suit on the merit.
On the allegation of fraud, a person alleging fraud is not only required to
make the allegation in his pleadings but must in the pleadings set out particulars
of fact establishing the alleged fraud prima facie. Black’s Law Dictionary
Abridged 5th Edition defines FRAUD as “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. A false representation of a
matter of fact, whether by words or by conduct, by false or misleading
allegations, or by concealment of that which would have been disclosed, which
deceives and is intended to deceive another so that he can act upon it to his legal
injury. Any kind of artifice employed by one person to deceive another.
Elements of a cause of action for fraud include false representation of a present or
past fact made by defendant, action in reliance thereupon by plaintiff, and damage
resulting to plaintiff from such misrepresentation.” See also Ntuks vs. NPA
(2007) 13 NWLR (pt1051) 392.
Using the above definition as foundation, I have not found in the
particulars of fraud set out in the plaintiff’s pleadings any averment or averments
of fact or facts tending to establish prima facia against the 1st respondent and
counsel acting on its behalf fraudulent conduct.
A cause of action is made up of an aggregation of facts recognized by law
as giving the plaintiff a substantive right to the claim or relief sought. A
reasonable cause of action is a cause of action with some chance of success when

only allegations in the plaintiff’s statement of claim are considered. Where, upon
examination, it is found that the alleged cause of action is bound to fail, the
statement of claim ought to be struck out. See Chevron (Nig) Ltd vs. L.D.
(Nig.) Ltd. (2007) 16 NWLR (pt. 1059) 168 SC, Ibrahim vs. Osim (1988) 3
NWLR (pt82) 257, Esiegbe vs. Agholor (1990) 7 NWLR (pt161) 234. The
court requires a strong case to be established before it will set aside a judgment on
the ground of fraud and the action will be stayed or dismissed as vexatious unless
the fraud alleged raises a reasonable prospect of success. See Anatogu vs. Iweka
II (1995) 8 NWLR (pt 415) 547, Olufunmise vs. Falana (1990) 3 NWLR (pt.
136) 3.
It is clear from my assessment of the particulars of fraud set out by the
appellant in its statement of claim that the allegations of collusion and fraud are
not only insufficiently particularized but are bound to fail. These failures
constitute enough grounds to strike out the pleadings pursuant to Order 23 Rule 4
of the Lagos State High Court (Civil Procedure) Rules 1994. The pleadings left
before the court below disclosing no cause of action, it was proper for the court to
dismiss the suit.
I shall therefore not tamper with the verdict of dismissal by the court below
which verdict I affirm. This appeal is dismissed with N50, 000.00 costs to the 1st
respondent.