EQUITABLE FRAUD

• Date: 06 February 2019

(1) "On the facts I find that the plaintiff did not discover what happened to give them a cause of action until 1961... The problem has been whether they have shown that the right of action was concealed and whether it was concealed by fraud. In my Judgment there is no difficulty about the first point. The defendant knew what the facts were and he deliberately withheld knowledge of them from the plaintiff... Has he concealed the plaintiff’s right of action by fraud? On this point my attention has been drawn to two authorities of the Court of Appeal. The first is Beaman v. A.R.T.S. Ltd. (1949) I All E.R. 465 and the second is Kitchen v. Royal Airforce Association (1958) 2 All E.R. 241. First of all, fraud does not necessarily mean deceit in the sense in which it is known in common law, and secondly the type of conduct which amounts to fraud is the type of conduct which was known in the Chancery Court as equitable fraud I cannot, I think, do better than to remind myself of what Lord Evershed, M.R. said in the Kitchen case and apply it to the facts of this case. "it is now clear however that the word fraud in s. 26(b) of the Limitation Act, 1939 is by no means limited to common law fraud or deceit. Equally, it is clear having regard to the decision in Beaman v. A.R.T.S. Ltd. that no degree of moral turpitude is necessary to establish fraud within the section. What is covered by equitable fraud is a matter which Lord Hardwicke did, not attempt to define two hundred years ago, and I certainly shall not attempt to do now, but it is, I think clear that the phrase covers conduct which, having regard to some special relationship between the two parties, is an unconscionable thing for one to do towards the other." - Per Nsofor, J.C.A. in Administrators/Executors of the Estate of General Sani Abacha v. Samuel David Eke-Spiff Suit No: CA/PH/29/2000; (2003) 1 N.W.L.R. (Pt.800) 114 at 172.

(2) "The Observation of Lord Denning at pages 751 to 752 deserves my respectful quotation. Said he: - "it has long been settled that fraud in this context does not necessarily involve moral turpitude. See Beaman v. A.R.T.S. Ltd. It is sufficient if what was done was unconscionable. See Kitchen v. Royal Airforces Association." Those cases show that "fraud" is not used in the common law sense. It is used in the equitable sense to denote conduct by the defendant or his agent such that it would be against conscience for him to avail himself of lapse of time. The section...