Access Bank plc v Orjiako et al

A claimant faces a high hurdle to obtain summary judgment against a defendant in a fraud case, at least when the defendant is actively defending an allegation of dishonesty. Certainly, courts have stressed that they are very cautious about granting summary judgment on the facts: a respondent to a summary judgment application need only show that his defence is not fanciful.

But, as a decision of Justice Mithani KC [Ag] on 1 October 2025 in the Commercial Court of the BVI shows, summary judgment is undoubtedly available and can be appropriate even if the defendant throws up a cloud of smoke to put the court off the scent.

The case is also interesting as being one of the very few cases in the BVI to consider s.81 of the Conveyancing and Law of Property Act 1961, which is based on s.172 of the English Law of Property Act 1925. That English provision has been repealed and replaced with s.423 of the Insolvency Act 1986. The objective of all these provisions is to permit a court to set aside a transaction if made with the intention of defrauding a person’s creditors.

In any summary judgment application, the court is entitled to evaluate the state of the evidence, whilst avoiding a mini-trial and remaining mindful of whether “there are reasonable grounds for believing that disclosure may materially add to or alter the evidence relevant to whether the claim has a real prospect of success”.

Often in fraud cases, any documentary or witness evidence to support a defendant’s case will be in his own possession or power to obtain. As long as a claimant has a prima facie case of fraud, it is not enough for a defendant to insist that evidence might yet crop up to support his defence whilst putting in no substantial evidence in answer to the summary judgment application.

Dr Orjiako, the defendant, had admitted his liability to repay the claimant Access Bank over $220m, but insisted that shares in various BVI companies which ostensibly held valuable assets of his had been transferred not just legally but also beneficially over to his wife, who was not a debtor. The Court had already granted a freezing order and appointed receivers of the shares in the BVI.

In granting summary judgment against Dr Orjiako, the Judge said that he had “sought to bury his case in a morass of irrelevant information and documents going back many years, hoping that neither the Claimant nor the Court would be able to get to the bottom of his case at the stage of the hearing of the Application. He believed that because of the overwhelming and confusing nature of that information and documentation, which he thought would be difficult to manage, understand, or resolve at the hearing of the Application, due to its sheer volume and complexity, it would inevitably mean that he would get unconditional leave to defend the Claim. The intention on his part, in my judgment, was designed to delay and obfuscate matters”.

That tactic failed and the court made a declaration that Dr Orjiako remained the sole beneficial owner of shares in various companies, the legal title to which he had transferred to his wife with the intent of defeating the claims of his creditors.

To read the full judgment please click here.

Steven Thompson KC, instructed by Carey Olsen (BVI), appeared with Richard Brown of that firm, for the claimant Access Bank.