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LIS PENDENS IS PART OF OUR LAW

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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

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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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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 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

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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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