➥ CASE SUMMARY OF:
Alhaja Risikat Dabiri Oyegbemi & Anor. V. Mr. Fatai Aromire & Ors. (CA/L/176/2002, 17 May 2012)
by Branham Chima (LL.B.)
➥ SUBJECT MATTER(S)
Lis pendens;
Real property;
Stool.
➥ CASE FACT/HISTORY
Chief Taoridi Akapo was the immediate past Chief Ojora of Lagos who died on the 7th of May, 1993. The Ojora Chieftaincy Family comprises of three ruling houses, to wit – Adejiyan, Oyegbemi and Olumokun. On the death of Chief Taoridi Akapo, it was the turn of Oyegbemi Ruling House to select the next Chief Ojora of Lagos. The 1st Appellant, PW4 at the High Court and the 1st Respondent belong to the same Oyegbemi Ruling House. The 1st Respondent had earlier instituted suit No. LD/1790/93 challenging the nomination of PW4 as the Ojora elect representing the Oyegbemi Ruling House and consequently obtained an interim order in motion No. LD/456M/93 restraining PW4 and others from taking further steps in the installation of PW4 as Ojora. The interim order was discharged on 11/10/93. The Lagos State Government then approved the appointment of the 1st Respondent as Chief Ojora of Lagos on May 18, 1994 as contained in its official Gazette No.32 Vol. 27 of 20/9/94. The Appellants thereafter instituted this suit at the High Court of Lagos State in 1994 via suit No. LD/3288/94 against the Respondents claiming the following reliefs, inter alia: ‘(a) A declaration that the 1st Defendant has not been appointed, selected or elected by the elders and the heads of the Oyegbemi Ojora ruling House as the nominee/candidate of the Oyegbemi-Ojora ruling house for the vacant position of Chief Ojora of Lagos.’
This is an appeal against the judgment of the Hon. Justice I.A. Sotuminu of the High Court of Justice, Lagos State delivered on the 7th of September, 2001 in which the Honourable Chief Judge dismissed the claim in its entirety.
➥ ISSUE(S)
I. Whether the doctrine of lis pendens is of general application to all law suits or only suits relating to real property?
➥ RESOLUTION(S) OF ISSUES
[APPEAL DISMISSED]
↪️ ISSUE 1: IN RESPONDENT’S FAVOUR.
[LIS PENDENS APPLIES TO REAL PROPERTIES ONLY
‘I am bound by the Supreme Court authorities herein before cited to hold that the doctrine can only be invoked in relation to real property in litigation. In Ajuwon v. Akanni and Ors (1993) NWLR (Pt.316) 182 at 197-198 per Iguh JSC, it was held thus: “It is indisputable that the doctrine of lis pendens affects a purchaser who buys property, the subject matter of litigation, during the pendency of such litigation, not because the purported purchaser is caught by the equitable doctrine of notice, but because the law does not allow parties to a suit, and give them, pending the litigation, rights in the property in dispute, so as to prejudice the opposite party. But the doctrine of lis pendens only applies to a suit in which the object is to recover or assert title to a specific property which however, must be real property as the doctrine has no application to personal property. Accordingly, where there is a sale of, or conveyance in respect of a land in dispute by either side to a litigation, even though the alienation be for ever so good a consideration, yet if it was made pendent lite, the purported purchase would be ineffective and must be set aside as void.” See also Enibros Foods Processing Company Ltd v. Nigerian Deposit Insurance Corporation (2007) 9 NWLR (Pt. 1039) 216; Ugwu v. Ararume (2007) 6 SCNJ 316. Thus a chieftaincy stool cannot come within the meaning of “any property” or “property” as decided by the various authorities. I agree with the learned Chief Judge on this point of law.’
ALBEIT THE RESPONDENTS ACT WAS REPREHENSIBLE
‘There is no doubt that it was wrong of the Respondents while litigation was on to have gone ahead to install the 1st Respondent, their action can only be criticized as reprehensible and nothing more since there was no pending restraining order against them. If the trial court had found the nomination and installation irregular, it would have been set aside without any hesitation since parties cannot present the court with a fait accompli to overreach the other party. The principle is settled that the court cannot be hamstrung by a party who changes the status quo during litigation. Thus, if a party cannot prove its case, the court is not obliged to indulge the party because it had changed its position during litigation and it may suffer the consequences if the case is resolved against such a party. In consequence, a party who resorts to self help cannot enjoy any favour from the court. That is the essence of the dictum of Nnaemeka-Agu JSC in Registered Trustees Apostolic Church v. Olowoleni (1990) 4 NWLR (Pt. 158) 514 at 537 where he said: “Once parties have turned their dispute over to the courts for determinations, the right to resort to self-help ends. So it is not permissible for one of the parties to take any step during the pendency of the suit which may have the effect of fostering upon a court a situation of complete helplessness or which may give the impression that the court is being used as a mere subterfuge to tie the hands of one party while the party helps himself extra judicially. Both parties are to wait the result of the litigation and the appropriate order of court before acting further.”’]
.
.
.
✓ DECISION:
‘The judgment of the trial court delivered on 7/9/01 in suit LD/3288/94 is hereby affirmed, I award ₦50,000 costs to each of the 1st, 3rd and 4th Respondents against the Appellants.’
➥ FURTHER DICTA:
⦿ SUBSIDIARY ISSUE CANNOT BE REGARDED AS ISSUE FOR DETERMINATION
On the preliminary objection, the following paragraph is the paragraph under attack: “Furthermore with or without the application of the doctrine of lis pendens, it is settled law that when a Suit is pending in Court nobody should act in such a manner to overreach or destroy the subject matter of the suit.” I am of the view and I agree with learned Appellants’ counsel that the argument in paragraph 3.20 of the Appellants’ brief is a natural progression of the argument in respect of the substantive issue for determination. By no stretch of the imagination can it be termed a new issue. An issue is different from arguments in support of that issue. Many arguments, major and subsidiary may emanate while arguing an issue. The arguments do not become different issues by the mere fact that they seek to expand or elucidate on the argument of the issue in controversy. In fact the argument complained of is a general proposition of the law that flows from the issue in controversy. In Agbetoba v. LSEC cited supra, Karibi-Whyte JSC held as follows on this point: “It is not only undesirable, but also confusing to split a ground of appeal into more than one issue. The practice of splitting grounds of appeal is likely to confuse consideration of principal issues with subsidiary issues, whereas, the principal issues are essential for the determination of the case, the subsidiary issues are formulations towards the elucidation of the principal issues. They cannot justifiably be regarded as issues for determination.” — H. M. Ogunwumiju JCA.
⦿ RATIONALE BEHIND LIS PENDENS
The doctrine of lis pendens is of common law origin. The full maxim is “Lis pendent nihil innovetur” that is “Law suit pending nothing new to be done”. The rationale behind the doctrine is that no law suit would be brought to a successful end if parties were allowed to change their position during its pendency. In the 9th Edition of Black’s Law Dictionary at page 950, lis pendens is defined variously as follows: “(1) pending law suit (2) The jurisdiction, power or control acquired by a court over property while legal action is pending (3) A notice recorded in the chain of title to real property, required or permitted in some jurisdictions to warn all persons that certain property is the subject matter of litigation and that any interest acquired during the pendency of the suit are subject to its outcome”. In Olori Motors v. UBN Plc (2006) 10 NWLR (Pt. 989) 586 at 625, the Supreme Court held quoted Idigbe JSC in Ogundiani v. Araba supra who discussed the doctrine of lis pendens thus: “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 an action. In its application against a 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. As was stated in Bellamy v. Sabine (1857) 26 LJ (NS) Equity Reports 797 at 80…” — H. M. Ogunwumiju JCA.
⦿ CONDITIONS FOR LIS PENDENS TO APPLY
In Bua v. Dauda (2003) 13 NWLR (Pt. 838) 657 at 686, the Supreme Court stated categorically as follows: “The situation in which the doctrine of lis pendens operates is fairly clear: Where Litigation is being prosecuted in regard to property and one of the parties purports to transfer by sale the legal estate in that property to a 3rd party, who may have no notice of the Litigation, the transaction of sale is ineffective, see Osagie v. Oyeyinka (1987) 2 NSC 480 at 849. That purchaser gets nothing because the doctrine is not founded upon the fact of actual or constructive notice of the litigation but upon the fact that the Law does not allow to any litigant party rights to alienate property in dispute while proceedings are pending so as to prejudice the opposite party: see Bank of Nigeria Ltd (sic) v. Ashiru (1975) 6-7 SC 99.” Also, on the same page, the Supreme Court set out certain conditions whereby the doctrine of lis pendens would apply. The court held as follows: “For the doctrine of lis pendens to apply, it must be shown (a) that at the time of the sale of property, the suit regarding the dispute about the said property was already pending: see Bellamy v. Sabine (1857) 26 L.J. (N.S) Eq. R 797 at 803; (b) that the action or lis was in respect of real property: it never applies to personal property: see Wigram v. Buckley (1894) 3 Ch. 483 at 492-493; (c) that the object of the action was to recover or assert title to a specific real property: that is to say, an action in a subject matter adverse to the owner in respect of some substantive right which is proprietary in nature: see Calgary and Edmonton hand Co. v. Dobinson (1974) 1 All E R 484 at 489; and (d) that the other party has been served with the originating process in the pending action: See Dresser UK Ltd. v. Falcongale Freight Management Ltd. (1992) 2 All ER 450 at 523.”
⦿ HISTORY OF LIS PENDENS
Lis pendens, the expression is made up of two Latin words. The first is lis. The second is pendens. The word ‘lis’ means a piece of litigation, a controversy. The word ‘pendens’ conveys the connotation of pending. The two words put and read together generally mean a pending law suit. The expression is a useful Latinism that has given its name to a Notice required in some jurisdiction to warn all persons that certain property is the subject matter of litigation and that any interest accrued during the pendency of the suit must be subject to the outcome of the litigation. Traditionally, this Notice was called the Notice of lis pendens. But 20th Century American Lawyers have shortened the phrase to merely lis pendens. See: Bryan Garner, a Dictionary of modern legal usage, Second Edition page 350. This reflects and confirms the traditional racing colloquial language of the Americans and the Americans. The doctrine which is embedded in the Common Law gives Notice to person by way of warning that a particular property is the res of litigation and that a person who acquires any interest in it must know well ahead that the interest will be subject to the Decision of the Court on the property. See: Matthew Okechukwu Enekwe v. International Merchant Bank and 2 Ors. (2006) 11 -12 SC 3. The doctrine of lis pendens is not a general application, it is restrictive, and it concerns only 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. This position is already settled by the definite pronouncements of the Supreme Court on the subject. — S. D. Bage JCA.
⦿ THE SUIT DOES NOT RELATE TO PROPERTY
I am fortified further in agreeing that the appeal has no merit because it is trite that a chieftaincy claim is a claim to an honor. There is no proprietary entitlement to be preserved against alienation; neither can it be destroyed. See Digest of Nigerian case law by Olisa Chukwurah page 24 wherein the learned author Posited thus:- “The court should decline to entertain an application if the claim is to a bare dignity or honour without material benefit incident thereto. A Chieftaincy is a mere dignity, a position of honour of primary among a particular section of a Native community Adanji v. Hunvoo (1908) NLR” That being the case, it is my view that the suit as filed with its reliefs do not relate to corporeal interest such that the doctrine of litis pendent lite can apply. — M. A. Danjuma JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
Helen Moronkeji Ogunwumiju, J.C.A.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
Deji Sasegbon SAN.
⦿ FOR THE RESPONDENT(S)
Segun Onakoya Esq., for 1st Respondent;
Mr. S. A. Quadri, for 3rd Respondent.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
