[PDF copy of this judgment can be sent to your email for N300 only. Just order through email@example.com and firstname.lastname@example.org or text 07067102097]
ADEKUNLE AJANI (MOGAJI) & ORS.
(FOR THEMSELVES AND ON BEHALF OF AJOBIARE FAMILY)
CHIEF AYODELE OKUSAGA
(ADMINISTRATOR OF THE ESTATE OF MADAM D. I.
OKUSAGA, NEE ONAMUSI)
HIGH COURT OF OYO STATE (IBADAN)
SUIT NO. 1/89/75
29TH OCTOBER 1976
ADEKUNLE AJANI (MOGAJI) & ORS. (For themselves and on behalf of Ajobiare family)
CHIEF AYODELE OKUSAGA (Administrator of the Estate of Madam D. I. Okusaga, nee Onamusi)
Adekola – for the plaintiffs
Okusaga in person
Fraud—Deed of Conveyance—Setting aside of- Fiduciary relationship between Solicitor and client—Presumption of undue influence.
Practice and Procedure-General traverse in pleadings-Order 13 rr. 10 & 11 of the High Court (Civil Procedure) Rules.
FAKAYODE, J.: The plaintiffs’ claim against the defendant is for an order setting aside the deed of conveyance dated 26th of March 1964 and registered as No. 19 at page 19 in Volume 731 of the Lands Registry at Ibadan purportedly executed in favour of the defendant by the plaintiffs on the ground of fraud.
Pleadings were filed by the parties. The following paragraphs of the Statement of Claim are set out hereunder as being very material:-
“2. The defendant is a Legal Practitioner based in Ibadan and the Administrator of his mother Madam Okusaga’s (Nee Onamusi) estate.
4 in Volume 620 and No. 11 at page 11 in Volume 565 respectively in the Lands Registry at Ibadan.
(a) The plaintiffs could not have executed a valid conveyance registered as No. 19 at page 19 in Volume 731 during the subsistence of power of attorney to the defendant.
(b) The said conveyance was executed by virtue of the fraudulent misrepresentation of the defendant, as to the real purport of the document signed in Court as represented to them in paragraph 16 above.
(c) Neither Onamusi nor any person negotiated for the sale of the said land with the plaintiffs.
(d) The sum of N4,000 indicated as purchase price of the land in the conveyance sought to be set aside, was never received by the plaintiffs’ family either from the defendant, his mother, or anybody.”
Equally important are the following paragraphs from the Statement of Defence:-
Each side to this action adduced evidence pursuant to the Statement of Claim or Statement of Defence and from the pleadings and the evidence adduced, I find that I have to determine the following issues:
The deed in question in this action was tendered as Exhibit “A”. It was executed by the plaintiffs in favour of the defendant’s mother. It was stated in Exhibit “A” that the purchase price for the 21.48 acres sold and conveyed thereby was N4,000.00. The plaintiffs pleaded and contended in evidence that not a kobo of this amount was paid by the defendant to the plaintiffs. The plaintiffs also contended that there was no negotiation or bargain for sale of land between the plaintiffs and anybody. In connection with this issue of non-payment of the consideration money in Exhibit “A”, the defendant tendered the following receipts as Exhibits:-
EXHIBIT DATE AMOUNT PURPOSE
M 31/3/65 N10.00 Instalment of Land Price
R 20/3/63 50.00
R1 20/3/63 N120.00
R2 22/3/63 N200.00
R3 14/5/63 N40.00
N 26/9/67 N100.00
N2 15/11/67 N100.00
N3 28/11/67 N100.00
N1 23/10/67 N27.00 Loan
N4 18/9/67 N23.00 Loan
My finding is that none of the receipts listed above related to the consideration money of N4,000.00 inserted in Exhibit “A” dated March 1964. The defendant tendered Exhibit “K” which was a letter dated 12th February, 1970 in which the plaintiffs said that the defendant had fully paid for the parcels of land bought from the plaintiffs’ family. I do not regard Exhibit “K” as being a conclusive or genuine admission by plaintiffs because-
(i) The plaintiffs in their evidence through PW1 said Exhibit “K” was drafted for them by the defendant and was executed in defendant’s house;
(ii) Exhibit “K” was executed when plaintiffs needed financial assistance from the defendant and the defendant would not give plaintiffs a loan unless Exhibit “K” was executed as drafted by him.
I reject the evidence of D. W. 2, Jones Olupitan, that he drafted Exhibit “K” on plaintiffs’ instructions because this version was not put to P.W. 1 under his cross-examination and the defendant himself in his evidence did not deny P.W. I’s evidence regarding the drafting and execution of Exhibit “K”. I hold, as submitted by plaintiffs’ Counsel, that Exhibit “K” was induced by the defendant because plaintiffs needed some money then. The defendant also tendered Exhibit “J” which was a letter dated 24th November, 1969 written by one Animashaun to the defendant on plaintiffs’ instructions. In Exhibit “J”, plaintiffs said that the price of the land in question was N4,000.00 out of which the defendant had paid only N1,050.00 leaving a balance of N2,950.00 unpaid despite plaintiffs’ repeated demands. The defendant did not give plaintiffs any reply to this letter, Exhibit “J” from the contents, of which I hold that the defendant is still owing the plaintiffs the sum of N2,950,00 as balance of the purchase price of the land sold and conveyed by means of Exhibit “A”.
It is true that nowadays, almost every defendant pleads the general traverse i.e. “Save as hereinafter (or hereinbefore) specifically admitted, the defendant denies each and every allegation contained in the Statement of Claim as though the same were herein set out and traversed seriatim”. Whilst this type of pleading may be good in cases of general and less important allegations in a Statement of Claim, it is insufficient for meeting important and specific allegations of facts as in paragraphs 15, 16, 17 and 27 of Statement of Claim. The general rule is that a traverse must not be evasive- see Thorp v. Holdsworth (1875-76) 3 Ch. D. 637. Also our Order 13 rules 10 and 11 provide thus:-
“Rule 10 It shall not be sufficient to deny generally the facts alleged by the Statement of Claim, but the defendant must deal specifically therewith, either admitting or denying the truth of each allegation of fact seriatim, as the truth or falsehood of each is within know-ledge, or (as the case may be) stating that he does not know whether such allegation or allegations is or are true or otherwise. Rule 11 When a party denies an allegation of fact he must not do so evasive-ly, but answer the point of substance. And when a matter of fact is alleged with diverse circumstances it shall not be sufficient to deny it as alleged along with those circumstances, but a fair and substantial answer must be given.”
In the case in hand, the Statement of Defence and the evidence of the defendant did not indicate facts as to when and how the purchase price in Exhibit “A” was paid. For instance, the defendant failed to say whether the payment or part payment was made by cheque or cash or both. However, I hold from Exhibit “J” that the plaintiffs admitted that the defendant paid them N1,050.00, leaving a balance of N2,950.00 unpaid out of the purchase price. I also hold from the contents of Exhibit “J” that the defendant induced the plaintiffs to execute Exhibit “A” by representing to the plaintiffs that some sizeable amount of money would come to the parties from the Government acquisition of part of plaintiffs’ land. I further hold, from the contents of Exhibit “J”—that proper bargaining or negotiation as between a willing seller and a willing buyer did not precede the execution of Exhibit “A”.
(B) Issue of Fraud
A distinction must be drawn between fraud at common law and fraud in equity. Fraud or deceit at common law is “misrepresentation of fact, made either knowingly, or without believe in its truth, or recklessly, not caring whether it was true or false”—see Derry v. Peek (1899) 14 App. Cas. 337. Fraud at common law is often referred to as actual fraud but fraud in equity is referred to as constructive fraud. Whilst actual fraud or common law fraud relates to statements or misrepresentation of fact, constructive fraud or fraud in equity relates to conduct or transactions in respect of which the Court is of opinion that it is unconscientious of a person to avail himself of the legal advantage he has obtained—see An Introduction to Equity by Keeton, 6th Edition pages 223-234.
Generally speaking, constructive fraud or fraud in equity is classified under the headings:
(a) Inequitable and unconscionable bargains as exemplified in Evans v. Llewellin (1787) 1 Cox Eq. Cas. 333 and Fry v. Lane (1888) 40 Ch. D. 312. A bargain will be regarded as being inequitable and unconscionable if one of the parties to the contract uses his great position, superior intellect or superior knowledge of worldly affairs to induce the other party of poor means weaker intelligence or great predicament to execute the contract.
(b) Abuse of a fiduciary or confidential relationship as between for examples:-
(i) Trustee and beneficiary
(ii) Parent and child
(iii) Guardian and ward
(iv) Spiritual Adviser and layman
(v) Solicitor and client
(vi) Doctor and patient
(c) Fraud upon the public or third parties as exemplified in such cases as Chesterfield v. Jaussen (1750) 2 Ves Sen 125 and Reading v. The King  A.C. 507. The above list of constructive frauds is not exhaustive.
A person held liable for actual or constructive fraud can be described as having (a) been fraudulent; or (b) acted fraudulently; or (c) defrauded.
(C) Fiduciary or confidential relationship between a Solicitor and his client
From the pleadings and evidence of the parties in this case, I hold that a fiduciary relationship existed between the plaintiffs and defendant because:
(i) In June 1963, the plaintiffs employed the services of the defendant as a Solicitor to conduct an appeal in the Supreme Court in suit
231/62 Odekunle v. Ajobiare. The defendant charged N525 as his fees for the appeal and because of the impecuniosity of the plaintiffs they gave an I.O.U. as per Exhibit “E” to the defendant for that amount which remains unpaid till today.
(ii) The defendant acted as Solicitor to both the plaintiffs and the defendant’s late mother in the preparation of the deed of conveyance Exhibit “A”, now in dispute.
(iii) In 1970, the defendant, as plaintiffs’ Solicitor, wrote to Lawyer Kola Daisi as can be deduced from Daisi’s letter of 26th March, 1970—Exhibit “G”.
(iv) On the 2nd April 1963, the defendant as plaintiffs’ Solicitor got a power of attorney from plaintiffs to manage and superintend the management of plaintiffs’ family land at Eleiyele (including the land in dispute conveyed by means of Exhibit “A”). The said power of attorney was registered as No. 54 at page 54 in Volume 601 in the Ibadan Lands Registry and tendered in evidence as Exhibit “C”. The power of attorney was to be irrevocable within a period of ten years from 1963-1973 and conferred absolute title on the defendant in relation to the said family land of the plaintiffs.
(v) There are many other deeds of diverse dates e.g. Exhibits “L4”, “L3”, “L2”, “F” and “L5” in which the defendant acted as Solicitor for both the plaintiffs and defendant’s relatives.
(vi) In Exhibits “B”, “L” and “L,” which are deeds of conveyances dated 29th May, 1965, 9th November, 1962 and 25th May, 1962 respectively the defendant acted as Solicitor for himself and the plaintiffs.
Having regard to the above circumstances and the general conduct between the parties I find as a fact that at all times material to this action the defendant acted as Solicitor to the plaintiffs. I also find as a fact that between 1963 and 1970 the fiduciary or confidential relationship of Solicitor and client existed between the parties to this action.
By virtue of a fiduciary or confidential relationship which exists between a Solicitor and his client, a presumption of undue influence shall be imputed into any gift or contract of sale between the parties and the onus shall lie on the Solicitor to rebut this presumption by proving-
(i) That the client was fully informed;
(ii) That the client had competent and independent advice; and
(iii) That the price or bargain was a fair one—see Wright v. Carter  1 Ch. 27.
Even if the relationship of Solicitor and client, in the strict sense, has terminated, the presumption of undue influence will still arise if the confidence naturally attached to such relationship has not ceased having regard to the circumstances of each particular case—see Demerara Bauxite Company Ltd. v. Hubbard & Ors  A.C. 673.
In my view of the evidence in this case, I hold that the defendant had failed to prove-
(i) that the plaintiffs had independent and competent legal advice with regard to the matter of this action—Exhibit “A”;
(ii) that the contract, or bargain in Exhibit “A” was a fair one; and
(iii) that the plaintiffs were truly and well informed about the true nature of the transaction in Exhibit “A”.
I also hold that the defendant induced the execution of Exhibit “A” by the plaintiffs by holding out to them a promise to pay the whole purchase price when-ever Government would have paid compensation for any acquisition of any part of plaintiffs’ land. This promise was a ruse as there was in fact no acquisition. So on the whole I find the defendant liable for the non-payment of part of the consideration money in Exhibit “A” and/or for constructive fraud which the defendant practiced on the plaintiffs with respect to the transaction in Exhibit “A”. Therefore, I hereby set aside the deed of conveyance registered as No. 19 at page 19 in Volume 731 at the Ibadan Lands Registry tendered as Exhibit “A” in this action. There shall be N200 as costs in plaintiffs’ favour against the defendant.
I must in conclusion say that plaintiffs must seek legal advice about setting aside other deeds of conveyance executed in similar circumstances by plaintiffs in favour of the defendant, his son, his mother and his uncle namely Exhibits “B”, “L2”, “L3”, “L,”, and “L5”. The most callous transaction was Exhibit “B” for the sale of 150.1 acres of plaintiffs’ land conveyed by the defendant to himself for the alleged sum of N300!! My view is that when the defendant got Exhibit “C”—the power of attorney-executed by plaintiffs in his (defendant’s) favour he intended to expropriate the plaintiffs of their family land to satisfy his greedy appetite and covetousness for the property of the poor, ignorant and illiterate plaintiffs.
This action succeeds and the deed Exhibit “A” is hereby set aside on the ground of the defendant’s fraud. There shall be N200 costs against the defendant in plaintiffs’ favour.