Appeal Court. 16th April, 1935.    Appeal from judgment of the Supreme Court of Sierra Leone.

Deed of Conveyance by Patient in favour of Medical Adviser ­Presumption arises of undue influence by former of latter ­Such Presumption must be rebutted-Duty of Court 1:n the hearing of appeals on question of fact from a Judge alone and from a Judge sitting with a Jury distinguished.

The facts of the case are sufficiently set out in the judgments.

C. E. Wright for the Appellant. J. P. Boston for the Respondent.

The following judgments were delivered:-

STROTHER STEWART, J.

This is' a case in which appellant seeks that a Deed of Conveyance in which certain property was conveyed by her to respondent should (inter alia) be set aside on the ground that it was obtained from her by undue influence arising from the fact that respondent was her medical adviser.

The appellant is an elderly woman who is a widow, and is of the age of eighty-six years. The respondent is a much younger man. They are not related to each other. The respondent commenced practising as a medical man in 1919, and, in 1920, attended an elderly female relative of his, who was a friend of appellant, and resided with her.

Appellant says that that was the first occasion on which he attended her. Respondent says that he had known appellant since he was a boy, but there is nothing to show that there was any special relationship between her and appellant up to the time he came to her house after he qualified as a medical man.

The appellant appears to have been a healthy woman for her age, but what ailments she had, after the time respondent attended his relative who was residing with her, were treated by respondent. She appears to have had another doctor before such time, but such doctor never attended her again after respondent began to attend her.

Appellant had two serious illnesses, in 1928 and 1930 respectively, on which occasions respondent attended her. He also appears to have given her tonics on other occasions. Appellant has had no illness since 1930.

I am of opinion that the proper deduction to be derived from the evidence is that respondent was, up to 1930, the medical adviser of appellant. The transaction which is impugned in this case took place towards the end of that year, and the beginning of 1931.

It concerned one of three houses belonging to appellant.

The versions of appellant and respondent differ as to the nature of the transaction.     

   Appellant says that she agreed to sell the house to respondent for the sum of £1,500, and that he paid her the sum of £:200 on account of the purchase money. She executed a Deed of Conveyance to respondent, of the house, dated the 4th day of :February, 1931, in which it was set out that the purchase price was £1,500, and receipt of that sum was therein acknowledged. It is common ground that such purchase price was never paid, and the said sum of £200 was subsequently re-paid to respondent by appellant. Appellant asked respondent for a receipt for the said sum of £200, as being part payment of the purchase price of the said house, and as cancelling' the Deed of Conveyance already referred to. Respondent refused to give her the receipt she asked for, characterising it as "a wicked receipt", but accepted the said sum of £200, and gave her back the said Deed of Conveyance " as a security." Respondent on the other hand says that the house was given to him as a gift, and that the £200 he gave her was not in respect of the purchase of the house, but was a token of friendship and gratitude given by him to appellant at the suggestion of appellant. He says that the form in which the house was conveyed to him was also the suggestion of appellant, as she did not want it to be known that she had given the house to respondent as a gift, as she might be pestered by other people hoping to benefit in a similar way. He said she returned the £200 to him when she learned that he had mortgaged a house of his in order to raise it. The case is being fought by respondent on the ground that the house was given to him as a gift.

The learned trial Judge decided in favour of respondent on the ground that the evidence did not disclose fiduciary relationship as pleaded, and that the relationship between appellant and respondent was rather that of quasi mother and son. He said it was difficult to understand how a casual attendance on two occasions could be said to create such a relationship as to make that relationship of a confidential and fiduciary character. He came to the conclusion that appellant had made the gift spontaneously, and well understanding the effect of same.

I differ, with great reluctance, from a learned, and experienced Judge, but I am of opinion that the attendances of respondent were not merely two" casual" attendances. There is no evidence that her old family doctor ever attended her after 1920, when respondent first visited he!' house as a medical man. The evidence on the other hand shows that respondent attended to all her ailments after that date, and there' is nothing to show that she ever dispensed with his services as a medical man, or would not have called him in as her medical attendant, if she had had any illness subsequent to her last one. Respondent admitted that her illness in 1930 was a serious one, and that she was in grave danger, and that she thought she would not recover. All the evidence tends to show that she had great confidence in respondent, and was very much impressed by what he had done for her in her illnesses. I think, therefore, that the relationship of medical man and patient existed at the time the transaction already alluded to took place.

Such relationship creates a presumption of undue influence, and the onus is upon respondent to rebut such presumption. I do not think he has done so. I think that if, in fact, the relationship between appellant and respondent became that of quasi mother and son, it is impossible to say that it did arise out of the relationship. of medical man and patient.

It is curious that when-according to the evidence of respondent-he was offered a house, the house he accepted was the best one, and one which was the chief source of appellant's income. It. was respondent who suggested the solicitor who should advise appellant as to the transaction, and respondent saw the solicitor before he interviewed appellant. Respondent was present when the deed was executed. It was respondent's wife, who had only known appellant since the said transaction, who accompanied her when she went to withdraw her will-which dealt otherwise with the property than as set out in the said transaction-from the registry. It was respondent who paid the cost of the conveyance.

I am not satisfied that appellant was put in a position to have absolutely independent advice, or to exercise her will entirely free from respondent.

Appellant appears to have quickly made up her mind to denounce the said Deed of Conveyance, and it is significant that although she signed the authority to the tenant of the house in question to pay the rent to respondent when respondent brought it to her, the very next day-when respondent was absent-she was personally countermanding such order.

I do not think, therefore, respondent has discharged the onus placed upon him of proving that the transaction complained of was not the result. of the influence he had acquired over appellant as her medical adviser.

I think, therefore, the appeal should be allowed with costs in this Court and in the Court below, and that an order as prayed by the appellant be made. The Court below to carry out.

MACQUARRIE, J.

I agree.

In my opinion, the presumption of undue influence which arises from the existence of the relationship of doctor and patient at or about the time of the execution of the deed has not been rebutted by the respondent, on whom lies the onus of doing so. The learned trial Judge held that respondent had proved that the gift was the spontaneous act of appellant fully appreciating the effect of the deed she signed~ I am unable to agree with this finding. The finding that respondent never at any time used his influence or suggested to appellant that she should make this gift is of a negative nature and, in view of his conduct throughout, is not such as to rebut the presumption. He took a part in getting the solicitor, Mr. Barlatt, for appellant, gave him information concerning the transaction before he went to see appellant; was himself present with the solicitor's clerks and no one else at the execution of the deed; and was the channel of communication between appellant and Mr. Barlatt after their interview. Some of these matters also bear on the question of Mr. Barlatt's independence, on which question the Court below said he was not respondent's solicitor at the time. I do not think this is a sufficient proof of Mr. Barlatt's independence, such as to make his advice to appellant such as should be given in her interests only. And on careful consideration of Mr. Barlatt's evidence, I am unable to hold that he sufficiently brought home to her the exact consequences of her act in signing the deed; although no doubt he acted in all good faith.

Finally, the presence of the respondent, the recipient of the gift, and the absence of anyone to advise appellant, at the actual execution of the deed, are to my mind circumstances which, amongst others, make it impossible to infer a spontaneous act of free will on the part of appellant.

The statements made by her to respondent's mother and wife do not appear to me to be of any value. The former went to thank appellant actually before the deed was made; while the latter met appellant for the first time after it was made. At such time appellant was still subject to the influence of the relationship.

This opinion does not in any way ignore the findings of fact by the Court below but does draw inferences from these facts which differ from those drawn by the Court below.

For these reasons I agree with the order proposed in the judgment (of Strother-Stewart, J.) that has just been delivered.

BROOKE, J.

Counsel for the appellant in opening his case rightly prefaced his remarks with a reference to the fact that the judgment is appealed from as being against the weight of evidence. It is appropriate to consider, as in the case of Macauley v. Tukuru reported in Nigeria Law Reports Vol. I at page 35, the principle on which this Court should act when dealing with the question as to whether a judgment is against the weight of evidence. It has been held in England that an appeal from a Judge is not governed by the rules applicable to the granting of new trials after a trial and verdict by a jury. This was laid down by the Court of Appeal in Coughlan v. Cumberland L.R. 1898 1 Ch. 704. The following is an extract of the judgment of the Court (delivered by Lindley, M.R.)-