➥ CASE SUMMARY OF:
Alhaji Usman Bua V Bashiru Dauda (SC.137/1999, 27 Jun 2003)
by Branham Chima (LL.B.)
➥ SUBJECT MATTER(S)
Undue influence;
Sale of property;
Lis pendens.
➥ CASE FACT/HISTORY
The relevant facts of this case may be stated quite briefly. The respondent is a trader residing in Jos. At the material time he dealt in automobile batteries in his store at No. 35, Ayeni Street, Jos. The 1st defendant is a native doctor. Sometime in September, 1987, the 1st defendant went to that store and bought a battery from the respondent. He did not pay for it but asked that the money be collected from him in his house. The respondent went with him to his house at No. 19 Bauchi Road, Jos. They rode in the 1st defendant’s car. On the way they got engaged in conversation introduced by the 1st defendant. This eventually ended in the arrangement for him, as a native doctor, to help the respondent into prosperity in his business. The 1st defendant prepared some herbal concoctions in three stages for this purpose for the respondent’s use. The first stage was a black native soap for bathing. After use, there was no sign of the business improving. The respondent then went back to the 1st defendant whereupon he was given what looked like maize pap which was mixed with a black powdery substance to drink. That was the second stage. But still, after some time there was no improvement in his business. The respondent went back to the 1st defendant to complain that nothing had changed for the better in his prosperity. The 1st defendant then asked to be taken to the respondent’s house. There, the 1st defendant expressed surprise that the respondent had such a big house. He then contrived a third stage. The respondent would leave the house so that the defendant would prepare and keep a talisman in the house. The respondent who was unmarried and lived alone agreed. He vacated the house and took abode with friends. He had been warned by the 1st defendant not to let anyone know what was going on. Later, the respondent who was now unable to help himself emotionally and in reaching rational decisions signed away his house to the 1st defendant – in different documents – at the 1st defendant’s shrine. These are Exhibits A and C, registrable though unregistered instruments. Both were drawn up in what I regard to be in flimsy form. There was no consent to alienate as required by Section 22 of the Land Use Act. This issue of consent was never raised throughout the proceedings. I have merely mentioned it along with the nature of the documents to indicate the sheer casualness of the transaction. The respondent filed his action in December, 1987, and the statement of claim in March, 1988. The 1st defendant filed his statement of defence in April, 1988. While the case had reached that stage, the 1st defendant sold the property in dispute to the appellant and thereafter absconded. He has not been seen ever since. He gave no evidence in support of his statement of defence.
This is an appeal from a judgment of the Court of Appeal, Jos Division, given on 16th June, 1999. The judgment affirmed that of the High Court, Jos delivered on 14th June, 1994. The claim originated from that High Court wherein the plaintiff, now respondent, claimed for five reliefs, three of which now stand relevant as follows: (a) a declaration that the sale of his house at AO32 Nassarawa Gwong, Jos, to the 1st defendant was null and void; (b) a declaration that the plaintiff was still the owner; and (c) an order setting aside the sale. The 2nd defendant (now appellant) was later joined as it became known that he had bought the said property from the 1st defendant.
➥ ISSUE(S)
I. Whether the court below properly apply (sic) the principle of law (undue influence) as decided in the case of Barclays Bank Nig. Ltd. v. Ashiru (1978) 1 LRN 266 to have given judgment in favour of the respondent?
II. Whether the sale transaction between the 1st Defendant and the 2nd Defendant is defeated by the doctrine of lis pendens?
➥ RESOLUTION(S) OF ISSUES
[APPEAL DISMISSED]
↪️ ISSUE 1: IN RESPONDENT’S FAVOUR.
[THE DEFENDANT/APPELLANT FAILED TO LEAD EVIDENCE THAT UNDUE INFLUENCE WAS NOT EXERTED
‘In the present case, as I have said earlier, the 1st defendant failed to give evidence. Consequently, he failed to discharge the burden on him to show the righteousness of the transaction. The learned trial Judge observed as follows: “The learned counsel for the 2nd defendant, in his address at the end of the case, seriously submitted that the plaintiff has not proved the allegations of ‘undue-influence’ pleaded in paras. 7-16 of the amended statement of claim. With respect to the learned counsel, I am not inclined to agree with him, because there is no evidence from the 1st defendant or from anybody for that matter, challenging the evidence of the plaintiff and his witnesses with regards (sic) to the use of undue-influence and concurtions’ (sic) on the plaintiff by the 1st defendant. As I said above, had the 1st defendant testified and rebutted the plaintiff’s evidence it might have been a different story.” The court below held that the finding was not perverse. It affirmed it and concluded that the respondent acted under the undue influence of the 1st defendant caused by the concoction he applied on him. I think it is right to say that the respondent had confidence in the 1st defendant about what the concoction would achieve for him but the 1st defendant fraudulently abused the confidence. That was the cause of action against the 1st defendant, and abuse of confidence is a strong element in it.’]
.
.
↪️ ISSUE 2: IN RESPONDENT’S FAVOUR.
[THE DOCTRINE OF LIS PENDENS APPLIES
‘On the question of lis alibi pendens, the learned trial Judge had no doubt from the facts, that it applied to defeat the transaction the 1st defendant entered into with the appellant (i.e. 2nd defendant). He said: “… (I) It is not in dispute that the plaintiff filed this suit against the 1st defendant on the 17/12/87. It is also not in dispute that during the pendency of the suit, the 1st defendant sold the house to the 2nd defendant on the 8/7/88 and disappeared. Whether the 2nd defendant has valid documents of transfer of the property from the 1st defendant is immaterial. The 2nd defendant is a ‘pendente lite purchaser’ and therefore he bought the house at his own risk. The doctrine of ‘lis pendens’ therefore applies to nullify the sale of the property to the 2nd defendant by the 1st defendant.” The Court of Appeal cited this passage and affirmed the finding. The 1st defendant filed his first statement of defence in April, 1988. So clearly he had been served with the suit challenging title to the house in question and had begun taking part in the proceeding at the time he purported to sell the said house to the appellant.’
‘Learned counsel for the appellant has argued that the appellant did not know that there was a suit in respect of the ownership of the house pending in court when he bought it. He contends that the appellant should be regarded as a purchaser for value without notice of any incumbrance. He further contends that the authority of Barclays Bank Nig. Ltd. v. Ashiru (1978) 6 and 7 S.C. 99; (1978) 11 NSCC 351 does not apply to this case because it does not relate to a mortgage transaction as that authority did. Learned counsel for the respondent has however submitted in the brief of argument filed on behalf of the respondent that the doctrine of lis pendens is not limited to mortgage transactions nor does it depend on the notice of a purchaser of property under litigation while it was in process. I have no doubt that the learned counsel for the respondent put the statement of principle correctly. The situation in which the doctrine of lis alibi pendens operates is fairly clear. Where litigation is being prosecuted in regard to property and one of the parties purports to transfer by sale the legal estate in that property to a third party, who may have no notice of the litigation, the transaction of sale is ineffective: see Osagie v. Oyeyinka (1987) 2 NSCC 840 at 849. That purchaser gets nothing because the doctrine is not founded upon the fact of actual or constructive notice of the litigation but upon the fact that the law does not allow to any litigant party rights to alienate property in dispute while proceedings are pending so as to prejudice the opposite party: see Barclays Bank of Nigeria Ltd. v. Ashiru (1978) 6 and 7 S.C. 99. For the doctrine of lis pendens to apply, it must be shown (a) that at the time of the sale of the property the suit regarding the dispute about the said property was already pending: see Bellamy v. Sabine (1857) 26 LJ (N.S.) Eq. R. 797 at 803; (b) that the action or lis was in respect of real property; it never applies to personal property: see Wigram v. Buckley (1894) 3 Ch. 483 at 492-493; (c) that the object of the action was to recover or assert title to a specific real property; that is to say, an action in a subject-matter adverse to the owner in respect of some substantive right which is proprietary in nature: see Calgary and Edmonton Hand Co. v. Dobinson (1974) 1 All ER 484 at 489; and (d) that the other party had been served with the originating process in the pending action: see Dresser UK Ltd. v. Falcongate Freight Management Ltd. (1992) 2 All ER 450 at 523. All these conditions were fully met in the present case. It follows that the judgment against the 1st defendant will certainly overreach the purported alienation of the house to the appellant during the pendency of the suit: see Sorrell v. Carpenter (1728) 24 ER 825 per Lord Chancellor King.’]
.
.
.
✓ DECISION:
‘The transaction between the respondent and the 1st defendant was caught by the doctrine of undue influence upon a true understanding of the facts. The two courts below were right in coming to that conclusion. That meant that the purported sale was voidable at the instance of the respondent, not null and void as stated in the claim. It is an equitable jurisdiction that the courts exercise to rescind such unconscionable transaction. It follows therefore that reasonable steps must be taken to avoid a transaction founded on undue influence in order not to be caught by laches and acquiescence: see Goldsworthy v. Brickwell (1987) Ch. 378 at 410; Nasr v. Rossek (supra) at page 551. The respondent took prompt action to have the transaction set aside as soon as it dawned on him that he had become a victim of the influence of the 1st defendant. The doctrine of lis alibi pendens has also caught up with the appellant who purported, while litigation was pending or in progress in court, to buy the property involved therein, i.e., the house in question. The appellant being a privy of the 1st defendant through buying pendente lite is bound by the judgment against the latter. The Court of Appeal rightly came to that conclusion. I find no merit in this appeal. It is hereby dismissed with ₦10,000.00 costs to the respondent.’
➥ FURTHER DICTA:
⦿ MEANING OF UNDUE INFLUENCE
Undue influence is no doubt elusive of satisfactory definition but it may be regarded as a state of mind of a person who has been subdued to any improper persuasion or machination in such a way that he is overpowered and consequently induced to do or forbear an act which he would otherwise do or not do of his free will. It is a product of the abuse or misuse of the confidence reposed in some one who is able to put some pressure on or take unfair advantage of another; or who takes an oppressive and unfair advantage of another’s necessities or distress: see Black’s Law Dictionary, 6th edn. page 1528. Undue influence could arise from confidential or fiduciary relationship existing between the parties which raises a presumption of that influence such as solicitor and client: see Willis v. Barron (1902) AC 271; doctor and patient: see Radcliffe v. Price (1902) 18 T LR 466; Re C.M.G. (1970) 2 All ER 740; principal and agent: see Nasr v. Rossek (1973) ANLR 539 (green cover); religious adviser and disciple: see Allcard v. Skinner (1887) Ch D 145. — S. O. Uwaifo JSC.
⦿ PARTICULARISATION OF UNDUE INFLUENCE
In the present case, learned counsel for the appellant likened undue influence to fraud and that it should therefore be particularised. Although in the statement of claim the respondent did not set out particulars under one paragraph, he pleaded in different paragraphs the various instances of what the 1st defendant did to his person so as to overpower his mental ability to resist him. That manner of pleading was, in my view, sufficient particularisation for pleading purposes and was effective. — S. O. Uwaifo JSC.
⦿ FOR THE DOCTRINE OF LIS PENDENS TO APPLY
For the doctrine of lis pendens to apply, it must be shown (a) that at the time of the sale of the property the suit regarding the dispute about the said property was already pending: see Bellamy v. Sabine (1857) 26 LJ (N.S.) Eq. R. 797 at 803; (b) that the action or lis was in respect of real property; it never applies to personal property: see Wigram v. Buckley (1894) 3 Ch. 483 at 492-493; (c) that the object of the action was to recover or assert title to a specific real property; that is to say, an action in a subject-matter adverse to the owner in respect of some substantive right which is proprietary in nature: see Calgary and Edmonton Hand Co. v. Dobinson (1974) 1 All ER 484 at 489; and (d) that the other party had been served with the originating process in the pending action: see Dresser UK Ltd. v. Falcongate Freight Management Ltd. (1992) 2 All ER 450 at 523. All these conditions were fully met in the present case. — S. O. Uwaifo JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
S.O. Uwaifo, JSC
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
P . O. Olorunmohunle, Esq.
⦿ FOR THE RESPONDENT(S)
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
⦿ THE DOCTRINE OF UNDUE INFLUENCE, ALLCARD V. SKINNER
In Allcard v. Skinner (supra) at p.183, Lindley, LJ., observed inter alia on comparable phenomenon thus: “It would obviously be to encourage folly, recklessness, extravagance and vice if persons could get back property which they foolishly made away with, whether by giving it to charitable institutions or by bestowing it on less worthy objects. On the other hand, to protect people from being forced, tricked or misled in any way by others into parting with their property is one of the most legitimate object of all laws; and the equitable doctrine of undue influence has grown out of and been developed by the necessity of grappling with insidious forms of spiritual tyranny and with the infinite varieties of fraud. As no court has ever attempted to define fraud so no court has ever attempted to define undue influence, which includes one of its many varieties. The undue influence which Courts of Equity endeavour to defeat is the undue influence of one person over another … But the influence of one mind over another is very subtle, and of all influences, religious influence is the most dangerous and the most powerful, and to counteract it Courts of Equity have gone very far. They have not shrunk from setting aside gifts made to persons in a position to exercise undue influence over the donors, although there has been no proof of the actual exercise of such influence; and the courts have done this on the avowed ground of the necessity of going this length in order to protect persons from the exercise of such influence under circumstances which render proof of it impossible. The courts have required proof of its non-exercise, and failing that proof, have set aside gifts otherwise unimpeachable.” The doctrine of undue influence extends not only to cases of coercion or tricks or fraud but to all cases “where influence is acquired and abused, where confidence is reposed and betrayed.”
➥ REFERENCED (OTHERS)
