Doctrine of Lis Pendens – Temitope Onabanjo

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The meaning of lis pendens is – ‘a pending legal action’, wherein Lis means the ‘suit’ and Pendens means ‘continuing or pending’. The doctrine has been derived from a latin maxim “Ut pendent nihil innovetur” which means that during litigation nothing should be changed.

The principle embodying the said doctrine is that the subject matter of a suit should not be transferred to a third party during the pendency of the suit.

The purpose of a lis pendens is to put third parties on notice that there is ongoing litigation over a property which could ultimately diminish its value or affect the interest of the party currently holding or controlling it. Potential purchasers will generally be reluctant to proceed with a sale where they discover that a lis pendens is registered. A lis pendens therefore prevents the person holding the property from dealing with it in the usual course, effectively freezing their rights of disposal. These adverse consequences are exacerbated by the necessity to make a Court application (unless the registrant consents) to vacate

According to the Court of Appeal in Akiboye v. Adeko (2011) 6 NWLR (pat 1244) 415, the doctrine has evolved for the purpose of preventing one party from fraudulently seeking to overreach the decision of the court granting title to the opposing party on the basis that he had divested himself of the title before the decision of the Court was made.

The point here is that if a third party chooses to purchase the property, the subject matter of litigation from one of the litigants during the currency of the suit, he does so at his own risk as stated in OLORI MOTORS CO.  LTD V U.B.N PLC (2006) 10 NWLR  (PT 989). If it turns out that the person from whom he bought had no title or was adjudged at the end of the suit to not be the owner, the purchase must take as he finds.  The contract entered into by a third party who purchases such property does not automatically become void, but must abide and be subject to the outcome of the suit.

The doctrine of Lis Pendens essentially aims at (i) avoiding endless litigation, (ii) protecting either party to the litigation against the act of the other, (iii) avoiding abuse of legal process

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The Supreme Court in EFP Co. Ltd v. NDIC (2007) 9 WLWR (pt. 1039) pg. 216, relying on its decision in Bua v. Dauda (2003) 13 NWLR (pt. 838) 657 at 686, stated that for the doctrine to apply, the following conditions precedent must be shown;

  • That at the time of the sale of the property, the suit regarding the dispute about the property was already pending. The doctrine of Lis pendens will apply only if the sale was made after the matter was already brought before the court.
  • That the action or Lis was in respect of real property, that is, landed or immoveable property as the doctrine never applies to personal properties such as shares or money.
  • That the object of the action in court was to receive or assert title to a specific real property. The pending action must be such that the Plaintiff insists that a right of ownership in the property be transferred to him rather than an acclaimed previous owner or possessor. It must be an action that goes to the root of exclusive ownership of the said property.
  • That the other party had been served with the originating processes in the pending action..

Culled: Lagos Lispendens

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