Judiciary-Poetry-Logo
JPoetry

LIS PENDENS – ACTUAL OR CONSTRUCTIVE NOTICE IS IRRELEVANT

Dictum

Simply put the doctrine of lis pendens operates to prevent the effective transfer of any property in dispute during the pendency of that dispute. It is quite irrelevant whether the purchaser has notice – actual or constructive. The doctrine is really designed to prevent the vendor from transferring any effective title to the purchaser by depriving him (the Vendor) of any rights over the property during the currency of the litigation or the pendency of the suit. That being so the principle of nemo dat quod non habet will apply to defeat any sale or transfer of such property made during the currency of litigation or the pendency of the action.

— Oputa, JSC. Osagie v. Oyeyinka & Anor. (1987) – SC.194/1985

Was this dictum helpful?

SHARE ON

WHEN SUIT IS PENDING – TEMPORARY INJUNCTION

J. Edward Jones v. Securities and Exchange Commissioner 80 L. Ed. 1015 298 US 1.33. There the second head note reads: “After a defendant has been notified of the pendency of a suit seeking an injunction against him, even though a temporary injunction be not granted, he acts at his peril and subject to the power of the court to restore the status wholly irrespective of the merits as may be ultimately decided.”

Was this dictum helpful?

EFFECT OF NOTICE ON PURCHASER OF AN EQUITABLE MORTGAGE

This brings us to the subject of the equitable doctrine of “Notice.” It is usually said that a purchaser of the legal estate in any property for value and without notice has an “absolute, unqualified and unanswerable defence” to any claim of a prior equitable owner or person having a prior equitable interest in the same property (see Pilcher Vs Rawlings (1872) 7 Ch. App. 259 at 269 per James L.J.). Where, however, the purchaser, as here, has notice of a prior equitable mortgage in the property in which he seeks to take a legal estate he has a duty, by himself or by his vendor, to get rid of that prior equitable interest otherwise he is taking unnecessary risk.

– Idigbe JSC. Ogundiani v. Araba (1978)

Was this dictum helpful?

PARTY WHO BOUGHT PROPERTY LIS PENDENS IS ON HIS OWN AND MUST LOSE EVERYTHING

The behaviour of the 2nd respondent left much to be desired. Knowing full well that he has sold the property to the appellant and received payment in full with an agreement to convey and a pending action for a specific performance, he proceeded to sell and convey what he no longer owns to the 1st respondent. Fortunately, for the appellant, his property rights are protected from the withering effect of the fraud. It is only the 1st respondent that is left defenceless against the fraud as he must in law lose the property bought with the money surrendered to the fraudulent vendor. He can however get back his money from the vendor.

— Obaseki, JSC. Osagie v. Oyeyinka & Anor. (1987) – SC.194/1985

Was this dictum helpful?

THE CONSEQUENCE OF LIS PENDENS

I thought I should state right away that the doctrine of lis – pendi relied also heavily upon by the Appellant in the circumstances of this appeal and on the real purport and import of that principle is of no moment as it does not give rise to abuse of Court process, since its consequences in law is very clear, it neither renders the transaction illegal, null and void as strenuously but erroneously contended by the Appellant in this appeal but rather it makes whatever interest allegedly acquired in the subject matter of a pending suit subject to the outcome of the suit such that if the party who had carried out the transaction or sale with the non party losses the Suit then the transaction is rendered a nullity but in the event that the party succeeds in the suit then the transaction or sale is validated and takes effect between the parties that duly entered into it. In whatever way this principle is considered it is, in my view, not applicable to the instant appeal to render the Respondent’s purchase illegal or void or its Suit against the Appellant an abuse of Court process. See Governor of Lagos State v. Ojukwu (1986) 3 NWLR (pt. 18) 621 @ p. 636; Amaechi v. INEC (No.1) (2007) 18 NWLR (pt. 1065) 42 @ p. 48.

— B.A. Georgewill, JCA. General Telephone v. Asset (2017) – CA/L/336/2015

Was this dictum helpful?

THE DOCTRINE OF LIS PENDENS

The doctrine of lis pendens prevents the effective transfer of right in any property which is the subject matter of an action pending in court during the pendency in court of the action. In its application against any purchaser of such property the doctrine is not founded on the equitable doctrine of notice – actual or constructive – but upon the fact that the law does not allow to litigant parties or give to them, during the currency of the litigation involving any property rights in such property (i.e. the property in dispute) so as to prejudice any of the litigating parties.

– Idigbe JSC. Ogundiani v. Araba (1978)

Was this dictum helpful?

LIS PENDENS IS PART OF OUR LAW

The doctrine of lis pendens is part of our law. See Ogundaini v. Araba and Barclays Bank of Nigeria Ltd. (1978) 6 and 8 SC. 55 at 80. It prevents the effective transfer of rights in any property which is the subject matter of an action pending in court during the pendency in court of the action. Any purchaser whether he has notice actual or constructive or not is bound by the doctrine and buys nothing from a litigant vendor. The 2nd respondent was a party to suit No. B/184/74 instituted in respect of the property now in dispute. He was barred by the doctrine of lis pendens from selling and conveying the property or any part thereof at the time he sold to 1st respondent. The 1st respondent therefore got nothing and the conveyance executed in his favour was null and void and conveyed nothing. The evidence shows that the suit was not determined till 31st October, 1977. It was pending from,23rd October, 1974 to 31st October 1977 and the 23rd day of June 1976 the date the 2nd respondent purported to have executed the conveyance Exhibit B in favour of 1st respondent fell within that period.

— Obaseki, JSC. Osagie v. Oyeyinka & Anor. (1987) – SC.194/1985

Was this dictum helpful?

No more related dictum to show.