"A person who has been induced to enter into a transaction such as a contract or guarantee, by the undue influence of another is entitled to set that transaction aside as against the wrongdoer. The effect of undue influence, like duress, is to make the contract voidable. A party cannot be held bound to an agreement where there has been fraud, duress, undue influence or misrepresentation; Alade v. Alic (Nig.) Ltd (2010) 19 NWLR (Pt. 1226) 111, (2010) LPELR-399(SC); Pan Bisbilder Nigeria Ltd v. First Bank of Nigeria Ltd (2000) 1 NWLR (Pt. 642) 684 (2000) LPELR-2900.
However, the Respondent was required to prove his assertion; Famfa Oil Ltd v. A-G of the Federation (supra); Hillary Farms Ltd v. M.V. Mahtra (supra); Ohochukwu v. A-G of Rivers State (supra). The Supreme Court in Bua v. Dauda (2003) 13 NWLR (Pt. 838) 657, (2003) LPELR-810(SC), defined undue influence thus: "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 own free will. It is a product of the abuse or misuse of the confidence reposed in someone who is able to put some pressure on or take unfair advantage of another's necessities or distress: see Black's Law Dictionary, 6th Edn. page 1528."
Black's Law Dictionary 9th Edition at page 1666 defined 'undue influence' in this manner: The improper use of power or trust in a way that deprives a person of free will and substitutes another's objective. Undue influence can be direct or covert. When there is direct actual undue influence, the claimant would have to prove affirmatively that the wrongdoer exerted undue influence on him to enter into the particular transaction which is impugned. Undue influence was described by Lindley LJ in Allcard v. Skinner (1887) 36 Ch D 145, as "... some unfair and improper conduct, some coercion from outside, some overreaching, some form of cheating and generally, though not always, some personal advantage gained."
Where undue influence is covert or presumed, the claimant has to show that there was a relationship of trust and confidence between the complainant and the wrongdoer of such a nature that it is fair to presume that the wrongdoer abused that relationship in procuring the complainant to enter the impugned transaction. If the complainant proves the existence of such relationship under which the complainant generally reposed trust and confidence in the wrongdoer, the existence of such relationship raises the presumption of undue influence. The relation of banker and customer will not normally give rise to a presumption of undue influence, but it can do so in exceptional cases if the customer has placed himself entirely in the hands of the bank and has not been given any opportunity to seek independent advice. The issue of undue influence has received more serious attention globally especially as concerns elderly persons or dependent adults.
The Final Report on Undue Influence: Definitions and Applications, presented in March 2010 to The Borchard Foundation Center on Law and Aging, being a project supported by the Center, made the following findings, inter alia: 'Despite wide variations in the contexts and circumstances in which undue influence and coercive persuasion in general have been explored, the findings are remarkably similar in terms of the salient features. Psychologists, sociologists, criminologists, victimologists, legal experts, and Courts have focused on the following: 1. Victim characteristics contributing to vulnerability include incapacity resulting from dementia, mental illness, or impairment; deficits in judgment or insight; altered states of mind (which may be induced), resulting from medications, sleep deprivation, etc.; emotional distress (which may also be induced).
Some analysts and practitioners have noted that people with "dependent personalities" are at heightened risk... 2. Influencers' power. Experts agree that to constitute undue influence influencers must be in positions of power or authority toward those they influence. They may be in positions of trust or confidence, which can be formal (e.g., the powerful person has a legal duty toward the less powerful person, as in the case of fiduciaries) or informal (as in the case of family members or neighbors)... 3. Improper actions or tactics. Influencers take affirmative steps or actions to persuade victims to engage in behaviors that are contrary to their interests in ways that exceed what is considered to be "normal" persuasion... 4. Unfair, improper, "unnatural," or unethical transactions or outcomes. Legal experts generally agree that to constitute undue influence, harm must result such as the loss of assets or property or inadequate care. Legal experts have focused on transactions that are considered unfair or improper by objective measures or what is considered "reasonable," such as the sale of victims' property below market value, or gifts made by victims that are not commensurate with the length and quality of their relationships with recipients. Other examples that are suggestive of undue influence are when those executing documents cannot explain them..."
Per OTISI, J.C.A. IN FBN v. DAVIES CITATION: (2017) LPELR-43556(CA)
