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LIS PENDENS AND ITS EXCEPTION; DOES REGISTRATION OF LIS PENDENS APPLY TO NIGERIA?

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The old doctrine of lis pendens was that if property was in question or dispute in a suit or action it could not be alienated during the pendecy of that suit or action, even to a purchaser or mortgagee without notice. There was however a change, or slight medication of this doctrine brought about by the Judgments Act 1839. By Section 7 of that Act no lis pendens binds a purchaser or mortgagee without express notice thereof, unless a Memorandum giving a description of the person whose estate is intended to be affected thereby, and particulars of the Suit, is registered in the Land Registry as a land charge (see Land Charges Act, 1925, S.3(1). One effect of such registration is to give intending purchasers or mortgagees notice of the litigation. By S.2(8) of the Land Charge Act of 1925 the registration ceases to have effect after five years unless renewed. The question now is – Are we in Nigeria bound by the doctrine of lis pendens? If the answer is yes then a further question arises – Are we also bound by the provisions of S.7 of the Judgment Act of 1839″ a statute of general application” which will apply to us here in Nigeria? This Court per Idigbe, J.S.C. answering the two questions posed above, in Ogundaini v. Araba and Barclays Bank of Nigeria Ltd. (1978) 6 and 7 S.C. 55 at p.80 thus (as it relates to registration of a lis pendens):- “At common law it was not compulsory to register a lis pendens. The Statutes which later made registration of a lis pendens compulsory in England do not come within the definition (in the frame-work of our local laws) of “Statutes of general application” in any event, those statutes which require, in England, compulsory registration of a lis pendens have no force and effect in Nigeria …. There is no local statutory provision requiring a lis pendens to be registered”. As it relates to the doctrine itself this Court at p. 78 of Ogundaini’s case supra stated categorically:- The doctrine of lis pendens 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. 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”.

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

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DOCUMENTS MADE BY INTERESTED PARTIES DURING THE PENDENCY OF THE SUIT ARE INADMISSIBLE

Coming to the issue of whether the documents in issue were either made during the pendency of this proceeding and/or in anticipation of it and by interested persons, I must say that, aside our earlier ruling, which I hereby affirm, that the impeached Exhibits PAH1, PAH2, PAH3 and PAH4 of Mr. Samuel Oduntan (P.W.21) and PAR1 (A, B, C, D, E and F) of P.W. 26 are even incompetent by reason of petitioners’ failure to accompany their petition with P.W. 21 and 26’s witness statements in line with Paragraph 4(5)(b) of the First Schedule of the Electoral Act, it is also clear to me that 3rd Respondent’s argument that Exhibits PAH1, PAH2, PAH3 and PAH4 of and PAR1 (A, B, C, D, E and F) were not only made by P.W. 21 and 26 during the pendency of this petition but P.W.21 in particular even admitted that he was well remunerated by the petitioners for his work. Their Reports are therefore inadmissible in evidence by virtue of Section 83(3) of the Evidence Act 2011. A document made in anticipation of litigation or during its pendency by persons interested is rendered inadmissible by section 83(3) of the Evidence Act 2011. See Anagbado v. Faruk (2019) 1 NWLR (Pt. 1653) 292 @ 312 (SC); C.P.C. v. Ombugadu (2013) ALL FWLR (Pt. 706) 406 @ 472-473 (SC); Ladoja v. Ajimobi (2016) 10 NWLR (Pt. 1519)87 @ 141 (SC); Oyetola & Anor. v. INEC & Ors (Unreported judgment of the Supreme Court of Nigeria of 9/5/2023 in Suit No SC/CV/508/2023).

— H.S. Tsammani, JCA. Atiku v PDP (CA/PEPC/05/2023, 6th of September, 2023)

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PARTY SHOULD NOT ANTICIPATE AN ORDER OF A COURT

In Daniel v. Ferguson (1891) 2 Ch 27 – CA: suit had been brought to restrain the defendant from building so as to darken plaintiffs’ lights. Notice of motion for a temporary injunction to be made upon a designated date was served on the defendant. After receiving notice, the defendant put on a large number of men and proceeded with his building running a well up to a height of about 39 feet from the ground before the injunction was granted. The court without regard to the ultimate rights of the parties held that the wall thus run up by the defendant should be torn down at once, as an attempt to anticipate the order of the court.

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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)

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LIS PENDENS – ACTUAL OR CONSTRUCTIVE NOTICE IS IRRELEVANT

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

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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

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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.”

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