This appeal is brought from a
judgment of the West African
Court of Appeal which reversed
the judgment of the trial judge
Webber C.J ,. who had dismissed
the action. The case is a very
peculiar one, in its facts. It
might almost be described as
sui generis.
The action was brought by an old
widow lady, Mrs. Johnson, who at
the time of the matters
complained of in the action was
some eighty-two or eighty-three
years of age. The defendant is a
medical man, who had on the
occasions of two illnesses of
the plaintiff (in the years 1928
and 1930) attended her
professionally. He was not what
she called her" family doctor,"
but he was an intimate friend of
hers. He apparently made no
charge for his professional
services; he said, " I never
regarded her as a paying
patient. I never charged her for
the medicines." The 1930 illness
was occasioned by the old lady
falling down and it lasted
throughout the month of August,
1930; but by the end of the
month her cure was complete. On
the 4th February, 1931, she
executed a deed of that date, by
which she purported to convey to
the defendant in fee simple,
certain land in Charlotte
Street, in Freetown, together
with the building thereon. The
deed purports to be a conveyance
on sale for the 8um of £1,500,
but it is not in dispute that
there never was a sale. The
conveyance must be treated as a
voluntary conveyance.
On the 9th July, 1932, Mrs.
Johnson issued her writ, and on
the 31st March, 1933, she
delivered her statement of
claim. By that document she
claimed to have the conveyance
set aside and a reconveyance of
the house and land by the
defendant to her. Her claim as
appears from the allegations in
paragraphs 2, 3 and 4 of t\1e
statement of claim was based on
two grounds (1) that the deed
was executed by her under the
influence of the defendant, her
medical attendant, without
independent advice, and (2) that
she executed the conveyance in
ignorance of its true nature.
This second allegation, which
looks like a charge of fraud
against the defendant, has in
fact disappeared from the case,
and may be disregarded. The case
was tried and decided on two
issues only, viz. (1) were the
defendant and plaintiff in the
confidential relationship of
doctor and patient?, and (2) was
the influence which, by reason
of the existence of that
relationship is presumed to have
produced the gift, rebutted by
the defendant?
The Chief Justice who tried the
case having had the great
advantage of hearing the
witnesses, held that on the
evidence the true relationship
was more like that of mother and
son, and that it was ",
difficult to understand how a
casual attendance on two
occasions ..... can be said to
create such a relationship as to
make that relationship of a
confidential and fiduciary
character." He further held that
even assuming that such a
relationship had been
established, the presumption of
influence had been rebutted. It
had, he said, been proved to his
satisfaction, having regard to
all the circumstances, "that the
gift was the result of the free
exercise of independent will."
The Court of Appeal took the
contrary view upon both points.
They were of opinion (1) that
the relation of doctor and
patient existed between the
parties and (2) that the
presumption. of influence had
not been rebutted by the
defendant.
Against this decision of the
Court of Appeal the defendant
has appealed to His Majesty in
Council.
Their Lordships appreciate that
the reversal of the findings of
fact of a judge who has tried
the case without the assistance
of a jury is well within the
competence of an appellate
Court, who are in fact
re-hearing the case; but as was
well said by Lord Esher, M.R.,
in
Colonial Securities Trust
Company
v.
Massey
[189G] 1 Q.B. 38, the case cited
by Brooke J. in his judgment,
the presumption is that the
decision of the trial judge on
the facts was right and that
presumption must be displaced by
the appellant. In considering
what advice they should tender
to His Majesty in the present
case, the question for their
Lordships to answer is in effect
the same. Has the plaintiff
displaced to their satisfaction
this presumption of the
correctness of the view
entertained by the trial judge?
As regards the first question,
the answer is they think, in the
affirmative. The learned Chief
Justice seems to have paid
insufficient attention to the
basis upon which the presumption
of influence arising from this
intimate relationship rests. He
dismisses the question by
describing- the defendant's
attendances as " a casual
attendance on two occasions."
That conclusion is not, in their
Lordships opinion, justified by
the evidence. So far from being
"casual," the attendances
represented attention and care
by the defendant to his patient
throughout the courses of the
two illnesses. The illness of
1930 was clearly no light
matter, as the defendant
attended the plaintiff during
the whole of August, and was one
which afforded just such an
opportunity for generating those
feelings of confidence and
gratitude, calculated to produce
the influence (no doubt
unconsciously operative) which
creates it desire to confer
benefits on the medical adviser
and against which the patient
requires protection. Upon this
first question, their. Lordships
agree with the Court of Appeal
that in this case, the question
of the validity of the gift made
by the plaintiff by the
conveyance of the 4th February,
1931, must be dealt with upon
the footing that the donor and
donee stood in the relationship
of patient and doctor or had
stood in that relationship so
recently as to necessitate that
the defendant should rebut the
presumption of· influence
arising from that relationship.
The principle which applies to
the abovementioned second issue
is to be found in the judgment
delivered by the Lord Chancellor
in
lnche Noriah
v.
Shaik Allie Bin Omar [1929]
A.O. 127. It may be stated as
follows: where the relations
between the donor and donee have
at or shortly before the
execution of the gift been such
as to raise a presumption that
the donee had influence over the
donor, the Oourt will set aside
the voluntary gift unless it is
proved that in fact the gift was
the spontaneous act of the donor
acting under circumstances which
enabled the donor to exercise an
independent will and which
justify the Oourt in holding
that the gift was the result of
a free exercise of the donor's
will.
In the case cited the question
was discussed whether the
presumption can be rebutted in
any other way than by proof of
independent legal advice and
also as to what constituted
sufficient independent legal
advice. Their Lordships were not
prepared to accept the view that
independent legal advice is the
only way in which the
presumption can be rebutted: and
they were not prepared to affirm
that legal advice, when given,
does not rebut the presumption,
unless it be shown that the
advice was taken. They held that
it was necessary for the donee
to prove that the gift was the
result of the free exercise of
the independent will of the
donor. It was pointed out that
the most obvious way to prove
the abovementioned fact is by
establishing that the gift was
made after the nature and effect
of the transaction had been
fully explained to the donor by
some independent and qualified
person so completely as to
satisfy the Court that the donor
was acting independently of any
influence from the donee and
with the full appreciation of
what he was doing and in many
cases where there are no other
circumstances this may be the
only means by which the donee
can rebut the presumption. The
fact, however, to be
established, said their
Lordships, was that which has
been already stated, and if
evidence is given of
circumstances sufficient to
establish that fact they saw no
reason for disregarding them
merely because they do not
include the advice from a
lawyer. They refused to lay down
what advice must be received in
order to satisfy the rule where
independent legal advice is
relied on further than to say
that it must be given with a
knowledge on the part of the
adviser of all relevant
circumstances and must be such
as a competent and honest
adviser would give if acting
solely in the interest of the
donor.
The learned Chief Justice who
tried the case referred to the
decision in the abovementioned
case and adopted the principle
therein stated. He came to the
conclusion that the plaintiff
was aware of the true nature of
the transaction, that she
deliberately chose a conveyance
(meaning a document which was in
form a conveyance for value) in
preference to a deed of gift,
that she signed the deed well
knowing the contents thereof,
that the contents were read out
to her and that she understood
everything that was said to her
at the time.
He recognised that the onus was
upon the defendant to prove that
the gift was the result of the
free exercise of the plaintiff's
independent will and as already
stated he held that this had
been proved to his satisfaction,
having regard to the
circumstances.
In their Lordships opinion the
question for decision in this
appeal is whether there was
evidence which justified the
Chief Justice in arriving at the
abovementioned findings. The
fact that the plaintiff had the
benefit of the advice of Mr.
Barlatt, the solicitor, of whose
independence the Chief Justice
was satisfied, and who was
selected by the plaintiff
herself to prepare the deed,
cannot be relied upon as
sufficient by itself to rebut
the presumption of influence by
the defendant, because it was
not proved that Mr. Barlatt had
a knowledge of all relevant
circumstances and it was for the
defendant to prove it; in
particular it was not proved
that Mr. Barlatt knew the total
of the plaintiff's property or
what proportion the portion
conveyed to the defendant bore
to the said total.
But it was not upon the advice
given by Mr. Barlatt, the
solicitor, to the plaintiff that
the Chief Justice either solely
or chiefly relied. It is
material, however, to note that
the solicitor explained to the
plaintiff the other legal forms
of carrying out her intention,
viz.: by a deed of gift or by a
will which could be revoked, but
that the plaintiff preferred the
form of a conveyance for value
and that the plaintiff told the
solicitor that she had thought
it all out and that she knew
what she was doing.
The plaintiff's preference for
the form of a conveyance for
value probably was not
uninfluenced by litigation with
another claimant to her
property.
There were other matters which
need not be mentioned in detail,
such as the withdrawal of her
will, her arrangements as to the
interim dealing with the rents
of the property, and another
gift of property at and about
the same time to a Mrs.
Williams, which the Chief
Justice was entitled to and did
take into consideration. relied
on further than to say that it
must be given with a knowledge
on the part of the adviser of
all relevant circumstances and
must be such as a competent and
honest adviser would give if
acting solely in the interest of
the donor.
The learned Chief Justice who
tried the case referred to the
decision in the abovementioned
case and adopted the principle
therein stated. He came to the
conclusion that the plaintiff
was aware of the true nature of
the transaction, that she
deliberately chose a conveyance
(meaning a document which was in
form a conveyance for value) in
preference to a deed of gift,
that she signed the deed well
knowing the contents thereof,
that the contents were read out
to her and that she understood
everything that was said to her
at the time.
He recognised that the onus was
upon the defendant to prove that
the gift was the result of the
free exercise of the plaintiff's
independent will and as already
stated he held that this had
been proved to his satisfaction,
having regard to the
circumstances.
In their Lordships opinion the
question for decision in this
appeal is whether there was
evidence which justified the
Chief Justice in arriving at the
abovementioned findings. The
tact that the plaintiff had the
benefit of the advice of Mr.
Barlatt, the solicitor, of whose
independence the Chief Justice
was satisfied, and who was
selected by the plaintiff
herself to prepare the deed,
cannot be relied upon as
sufficient by itself to rebut
the presumption of influence by
the defendant, because it was
not proved that Mr. Barlatt had
a knowledge of all relevant
circumstances and it was for the
defendant to prove it; in
particular it was not proved
that Mr. Barlatt knew the total
of the plaintiff's property or
what proportion the portion
conveyed to the defendant bore
to the said total.
But it was not upon the advice
given by Mr. Barlatt, the
solicitor, to the plaintiff that
the Chief Justice either solely
or chiefly relied. It is
material, however, to note that
the solicitor explained to the
plaintiff the other legal forms
of carrying out her intention,
viz.: by a deed of gift or by a
will which could be revoked, but
that the plaintiff preferred the
form of IL conveyance for value
and that the plaintiff told the
solicitor that she had thought
it all out and that she knew
what she was doing.
The plaintiff's preference for
the form of a conveyance for
value probably was not
uninfluenced by litigation with
another claimant to her
property.
There were other matters which
need not be mentioned in detail,
such as the withdrawal of her
will, her arrangements as to the
interim dealing with the rents
of the property, and another
gift of property at and about
the same time to a Mrs.
Williams, which the Chief
Justice was entitled to and did
take into consideration.
