The Tort of Deceit in Nigerian Law: Fraudulent Misrepresentation and Liability

Fraud, as Nigerians understand it practically, has many faces. There is the “yahoo boy” who defrauds a foreign national through advance fee schemes. There is the land vendor in Lekki who sells the same plot of land to three different buyers. There is the developer in Osapa London who collects completion payments from fifty subscribers while knowing, from day one, that he has no building permit. And there is the more intimate kind of fraud: the man who promises marriage to a woman, receives her financial support and possibly much more, and then vanishes or reveals that he was already married all along.

In each of these situations, the EFCC and the criminal courts may be one avenue of response. But there is another avenue, often overlooked, that does not depend on the state’s willingness to prosecute, that operates on a lower standard of proof, and that puts money directly in the hands of the person harmed: the civil tort of deceit.

The Essence of the Tort

The tort of deceit is the civil law remedy for a deliberate lie. Its distinction from negligence, which also addresses misstatements, is fundamental. A negligent misstatement is a careless one: the defendant did not take enough care to ensure that what they said was true. A fraudulent misstatement is a dishonest one: the defendant knew it was false, did not believe it was true, or made it recklessly without caring whether it was true or false. Negligence asks: was this person careful enough? Deceit asks: was this person honest?

The practical consequence of that distinction is significant. In negligence, the plaintiff must establish a special relationship of proximity giving rise to a duty of care before recovering for a misstatement. In deceit, no such relationship is required. The only requirement is that the defendant made the false statement with the intention that the plaintiff should act on it, and that the plaintiff did so and suffered loss. The fraudster does not need to be in any pre-existing relationship with the victim. He only needs to have lied, intended reliance, and caused damage.

The Five Elements

To succeed in an action for deceit the plaintiff must establish all of the following.

The defendant made a false representation of fact, by words or by conduct. The representation must be one of fact, not of law or opinion, though a false representation of one’s own state of mind is a representation of fact. As Bowen LJ stated in Edgington v Fitzmaurice, the state of a man’s mind is as much a fact as the state of his digestion. Where the defendant honestly believes what he says, even unreasonably, there is no deceit, though there may be negligence. See James v Mid-Motors (Nigeria) Co. Ltd (1978) 2 L.R.N. 187.

The general rule is that silence does not constitute deceit. A party to a transaction is not ordinarily required to volunteer information damaging to his own interests. But silence becomes actionable deceit in three specific circumstances. First, where a statement was true when made but has since become false to the defendant’s knowledge and he deliberately says nothing, allowing the other party to proceed on the basis of a truth that has turned into a lie. Second, where there is active concealment, such as a car dealer who resets an odometer, or a property vendor who paints over signs of structural damage before showing the property. Third, where the defendant lies about his state of mind, such as where a borrower represents that funds will be used for business development while privately intending to use them to settle personal debts.

The defendant intended the representation to be acted upon by the plaintiff or by a class of persons including the plaintiff. It does not matter that the statement was not directly addressed to the plaintiff. A prospectus distributed to the investing public is directed at a class; any member of that class who relies on it and is harmed may sue. See Pilmore v Hood and Langridge v Levy.

The plaintiff relied on the representation and suffered damage. The plaintiff must have actually acted on the false statement, and that reliance must have caused the loss. In Sule v Aromire (1951) 20 N.L.R. 20, the court confirmed that the plaintiff must have genuinely relied on the defendant’s misstatement.

The defendant knew the representation was false, lacked belief in its truth, or was reckless as to its truth. This is the fraudulent intent element, established definitively in Derry v Peek (1889) 14 App Cas 337. Honest belief, however unreasonable, defeats a claim in deceit. Recklessness does not.

Silence, Fraud, and the Promise of Marriage

There is a category of case in Nigerian life where the doctrine of deceit intersects with promises that are deeply personal, often financially consequential, and legally underappreciated. The breach of promise to marry is an area where the overlap between deceit and private life becomes most visible.

At common law, a promise to marry was enforceable as a contract, and breach of that promise gave rise to a cause of action for damages, historically including compensation for wounded feelings, loss of social position, and financial outlays made in preparation for the marriage. In modern Nigerian law, the contractual analysis of a promise to marry has been complicated by the requirement of an intention to create legal relations: where a couple exchange informal promises of marriage, it is often impossible to establish that either party intended the promise to have legal effect in the contractual sense. The absence of that intention can leave the abandoned party without a remedy.

But the tort of deceit offers a different pathway, and it is one that the Nigerian courts have not sufficiently explored. Where a person promises marriage not as a genuine commitment but as a pretext for obtaining money, property, sexual favours, or other benefits from the other party, and where that person knew at the time of the promise that he had no intention of fulfilling it, the promise is a false representation of his existing state of mind. Since a person’s intention at a given moment is a fact, its false statement is a statement of fact within the meaning of Derry v Peek. The party induced by that false promise to hand over money, leave their employment, contribute to a joint account, or suffer any other financial detriment has an action in deceit, and importantly, does not need to navigate the doctrinal difficulties of contract law or the intention to create legal relations at all.

The measure of damages in such a case would follow the general rule in deceit: the plaintiff recovers all losses directly caused by her reliance on the false promise, including financial contributions made in anticipation of the marriage, economic opportunities foregone, and any other identifiable pecuniary loss. This is a more robust analysis, and arguably a more honest one, than forcing the promise of marriage into the contract framework where it has never sat comfortably.

Deceit in Nigerian Property and Commercial Transactions

Property fraud is the most common factual setting for deceit actions in Nigeria. The standard scenarios are well established. A seller presents a Certificate of Occupancy for land he does not own, or for land already sold to another buyer, and receives full purchase price from an unsuspecting buyer. A developer collects subscriptions for off-plan property based on representations about completion dates and facilities that he knows are unachievable. A bank officer represents to a customer that a transaction is risk-free in terms that the officer knows to be false. In Adedeji v Oloso (2020) LPELR-50292(CA), the Court of Appeal voided a sale of land because the seller lacked proper title, though the court emphasised that buyers bear the burden of conducting their own due diligence. Where the seller has actively misrepresented his title, however, the buyer’s failure to verify does not defeat the deceit claim; it is not a defence to deceit that the plaintiff could have discovered the truth by exercising more diligence.

The measure of damages in deceit is particularly favourable to plaintiffs. Unlike in negligence, where only foreseeable losses are recoverable, in deceit the defendant is liable for all losses directly flowing from the fraud, including those that were not reasonably foreseeable at the time. This reflects a moral judgment: the person who lies deliberately should not be permitted to limit their liability by reference to what they could have predicted would happen. As the English Court of Appeal stated in Doyle v Olby Ironmongers Ltd, the principle in deceit is that the defendant must restore the plaintiff to the position he would have been in had the deceit not been practised.

The Relationship with Contract and Negligence

A fraudulent misrepresentation that induces a contract gives rise both to a tortious claim in deceit and to contractual remedies including rescission, where the contract can still be undone. The tortious claim is often more valuable because it enables recovery of losses that cannot be reached through contractual damages alone, such as expenses incurred in attempting to use the property acquired through fraud.

The contrast with negligent misstatement deserves emphasis. Under the principle of Hedley Byrne and Co. Ltd v Heller and Partners Ltd (1964) AC 465, a negligent misstatement in a special relationship of proximity may ground liability. But the plaintiff must establish that special relationship. In deceit, there is no such threshold. The fraudster is liable to any person who was within the class he intended to deceive. For the student, the practical rule is: if the defendant was careless, think negligence. If the defendant was dishonest, think deceit.

Frequently Asked Questions

Can I sue someone in Nigerian civil court for fraud even if the police have not charged them? Yes. The tort of deceit is entirely independent of any criminal prosecution. The civil standard of proof is the balance of probabilities, which is lower than proof beyond reasonable doubt. A civil damages claim may be pursued simultaneously with, or entirely independently of, any criminal complaint.

Is it deceit if a property seller did not disclose a mortgage on the land? Silence is generally not actionable as deceit unless the seller actively concealed the mortgage or positively represented that the land was unencumbered. Where no direct question was asked and the seller merely remained silent, your claim may sound in negligence against your lawyer for failing to conduct proper searches, rather than in deceit against the seller.

What is the limitation period for a deceit claim in Nigeria? Under most state limitation laws, the period for tort claims is six years from the date the cause of action accrued. In fraud cases, the limitation period may not begin to run until the plaintiff discovered, or could with reasonable diligence have discovered, the fraud.

Conclusion

The tort of deceit is one of the oldest in the common law and one of the most practically relevant for Nigerians today. Land fraud, commercial fraud, financial misrepresentation, and the deliberate exploitation of personal relationships through false promises all fall within its reach. Its requirement of dishonesty is both its defining characteristic and its limitation: the plaintiff who cannot prove that the defendant lied knowingly or recklessly will need to look elsewhere, perhaps to negligence or to contract, for a remedy. But where that dishonesty is established, the tort of deceit provides a remedy that is broader in its reach, more generous in its measure of damages, and less technically constrained than almost any other cause of action in Nigerian civil law.

For related reading, see Misrepresentation in Contract Law for the contractual dimension, Negligence in Torts for the careless misstatement alternative, and The Tort of Conspiracy in Nigerian Law for the position where two or more persons combine to deceive.

References Kodilinye and Aluko, The Nigerian Law of Torts (Spectrum Books, Lagos, 1995), pages 214-220 Ese Malemi, Law of Tort (Princeton Publishing Company, 2013), pages 614-628 Adedeji v Oloso (2020) LPELR-50292(CA) James v Mid-Motors (Nigeria) Co. Ltd (1978) 2 L.R.N. 187 Sule v Aromire (1951) 20 N.L.R. 20 DLA Piper REALWORLD, Misrepresentation in Nigeria (2024)