Alhaji Usman Bua Vs Bashiru Dauda (2003)

LAWGLOBAL HUB Lead Judgment Report

O. UWAIFO, J.S.C.

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.

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.

In his statement of defence, the appellant proceeded to narrate how he came to buy the house from the 1st defendant. He averred that he was not aware of any dispute about the house at the time he purchased it until when he was joined as a co-defendant. The respondent gave evidence of the entire incident and how he left his house and stayed with one Alex Fom who gave evidence as P.W.3. As part of his evidence, the respondent said:

“After about a month, I left Alex Fom’s house and my relation took me to somewhere in Lagos area for treatment; I recovered and came back to Jose sometime in 1987; I came back to my senses and decided to go back to my house. When I got there I found a security guard who told me that the house did not belong to me but to the defendant.”

One Anthony Udeze (P.W.2) who claimed to have been an employee of the 1st defendant as his manager gave a long testimony as to the incident. The long and short of it is that the 1st defendant used “black magic” to confuse the respondent. Referring to the first day of contact between the 1st defendant and the respondent (i.e. plaintiff), the witness said:

“After the plaintiff had gone, the defendant called me into his office and told me that he had ‘hooked’ the plaintiff and that there was no way out for the plaintiff. That he was going to make the plaintiff sell all his wares and bring the money to him.”

Again, the witness said in connection with the house:

“He (i.e. 1st defendant) collected his wife in his car as well as myself and we drove to the plaintiff’s house at Nassarawa. We entered the house. The defendant said nothing would make the house not to be his own ………. He gave me N20.00 to go and buy beer and bring to him ….. The defendant told me as we were drinking the beer that he had warned the plaintiff that he would die if he dared reveal to anybody all that had happened between them or about the house.”

It is true that some aspects of the evidence of P.W.2 went beyond the pleadings. But by and large those I have reproduced go towards establishing the circumstances which led to the parting by the respondent with his property through the inducement and “undue influence of the defendant and under his direction and pursuant to the faith and trust reposed in the defendant as a native doctor without any separate and independent advice and without due consideration of the reason for or the effect of what he (respondent) was doing,” as submitted on behalf of the respondent.

The learned trial Judge, (L. N. Emefo, J.), gave judgment for the respondent as plaintiff. This was affirmed, as I have said, by the Court of Appeal. The appellant has now further appealed to this court upon three issues which he stated thus:

“(i) Whether the finding of the trial court as confirmed by the court below was not perverse.