PRACTICE AND PROCEDURE – DOCTRINE OF LIS PENDENS – Whether the doctrine of lis pendens applies to every suit


“The major contention of the appellant’s counsel is that the doctrine of lis pendens only applies to real property and not the sale of machinery found on the landed property which, in his view, qualifies as personal property. This sort of submission is not unexpected with regard to such a doctrine like that of Lis Pendens – an “archaic, anachronistic and obsolete” doctrine. Although the doctrine has either been “abolished or modified by legislation in England and in other jurisdictions that applied common law,” it has “remained in its raw form as part of our laws without modifications since then,” G. Ojo and K. Ojo, “Lis Pendens and Insecurity of Title to Land in Nigeria: A Call for Legislative Intervention,” in The Gravitas Review of Business and Property Law, Vol. 8, No 4 (Dec 2017) 11. True, indeed, as the appellant’s counsel submitted, the doctrine, which derives from the Latin expression, pendente lite nihil innovetur, which means “nothing should change during the pendency of a suit,” Amaechi v INEC (2008) 407 All FWLR 1, was initially held inapplicable to personal property, Ogundiani v Araba (1978)1 SC 55; Enekwe v International Merchant Bank of Nigeria Ltd and Ors (2006) LPELR – 1140 (SC) 21; Barclays Bank of Nigeria Ltdv Ashiru (1978) 6 – 7 SC 99, 128; Oronti v. Osidele (2012) 6 – 7 MJSC (pt 1) 178. The sole purpose of the doctrine, at least, at that pristine stage was to prevent frustration of the decree of the Court by alienation of the property in litigation, Bellamy v Sabine (1857) 1 De G and J 565; 7 Columbia Law Review 282. This purpose was accomplished by enforcing the decree against all persons who had acquired an interest pendente lite in the same manner as though they had been parties to the suit, Norris v Ile (1894) 152 111 190, 1999, Columbia Law Review VoI. 12, No. 4 (April, 1912) 363, I. O. Smith, Practical Approach to the Law of Real Property in Nigeria, (Lagos: Ecowatch Publications (Nig,) Ltd, 2013) 15-17; C. O. Olawoye, Title to Land in Nigeria, (Lagos: Evans Brothers Ltd, 1974) 38. However, contrary to that submission, another line of authorities has consistently held that the doctrine is applicable to any pending suit, including personal property, Umoh v Tita (1999) 12 NWLR (pt 631) 631, Amaechi v INEC (supra); to wrongful eviction of tenants by landlord. Akinkugbe v Ewulum Holdings Nig Ltd (2008) 4 SC 125. It has equally been made applicable to tangible and intangible res Gamadi v Yohanna (2006) 2 FWLR (pt 308) 1968 as well as declaratory reliefs, Ezomo v NNB (2007) All FWLR (pt 368) 1032; Juris Secundum, Vol 54, 570, Olori Motors Co Ltd and Ors v UBN Plc (2006) LPELR – 2589 (SC) 9- 10. The doctrine has indeed been applied to subject areas outside property law as it disallows any transfer of rights or interests in any subject matter being litigated upon, St Michael’s Pharmaceuticals Ltd v Moore Associates Ltd (2015) 812 All FWLR 1550. Against this background, some scholars have called for legislative intervention, G. Ojo and K. Ojo, “Lis Pendens and Insecurity of Title to Land in Nigeria: A Call for Legislative Intervention,” (supra); G. Ojo, “Defining the Scope and Limit of the Doctrine of Lis Pendens. Need for a Restatement of Principles, in The Gravitas Review of Business and Property Law, Vol 6, o. 3 (Sept, 2015) 1. Against this background, I agree with the leading judgment that KAN Biscuit Factory consists of the land and machinery sold during the pendency of the present suit.” Per CHIMA CENTUS NWEZE, JSC (Pp 12 – 15; Paras D – D)

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