CORAM

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MUSA DATTIJO MUHAMMAD

CHIMA CENTUS NWEZE

UWANI MUSA ABBA AJI

HELEN MORONKEJI OGUNWUMIJU

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PARTIES

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NIGERIAN INDUSTRIAL DEVELOPMENT BANK LIMITED

APPELLANTS 

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KAN BISCUITS COMPANY LIMITED

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, ACTION, PRACTICE AND PROCEDURE, JUDGMENT AND ORDERS

 

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SUMMARY OF FACTS

The Respondent by a loan and mortgage agreement dated 26/8/1992 took a term loan of US$921,080.00, US$25,094.00 and from the 1st Appellant to acquire additional plant, equipment and machinery for its biscuit factory project (Kan Biscuit Factory) situate at Aba in Abia State. In default, the 2nd Appellant was appointed as Receiver. The Respondent, who was the Plaintiff, at the Federal High Court sued the Appellants as Defendants in February, 1999, challenging the appointment of the 2nd Appellant by the 1st Appellant as Receiver in respect of the assets of the Respondent, an order directing the Appellants to reconcile its account with the Respondent and an order of injunction restraining the Appellants from taking over or disposing the Respondent’s assets. Before the proper hearing, the Respondent vide a motion for interlocutory injunction sought to restrain the Appellants from selling KAN Biscuit Factory. The application was however refused by the trial Court on 27/10/1999. This prompted the Respondent to appeal to the Court of Appeal (lower Court) on 8/11/1999.

 

Nevertheless, while the substantive matter was pending before the trial Court and the interlocutory appeal before the lower Court, the Appellants went ahead and sold the factory of the Respondent to DE-ENDY INDUSTRIAL COMPANY LIMITED. Consequently, the Respondent vide a motion on notice before the Federal High Court where the substantive matter was pending, sought to set aside the sale being made pendente lite. The trial Court delivered its ruling on 30/4/2002 setting aside the sale.

Dissatisfied, the Appellants appealed to the lower Court, which dismissed the appeal and upheld the decision of the trial Court. Further aggrieved, the Appellants have filed this appeal.

 

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HELD

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Appeal dismissed

 

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ISSUES

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Whether having regard to the entire circumstances of the claims constituted in the substantive suit, all being declaratory claims and reliefs and the decision of the Courts on the interlocutory application to set aside the sale of items of personal properties-chattels (plant, equipment and machinery) other than landed property (real property) at interlocutory stage of the proceedings, the trial Court and Appeal Court were not wrong in applying the common law doctrine of lis pendens to the instant case and thereby inadvertently disposing of the substantive claims and reliefs still pending and abandoned before the trial, which led the Courts to give perverse judgments.

 

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RATIONES DECIDENDI

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DOCTRINE OF LIS PENDENS – ON WHEN THE DOCTRINE OF LIS PENDENS CAN BE APPLIED

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“It is without disputation that this Court earlier made the application of the doctrine of lis pendens to apply only to suits in which the object is to recover or assert title to a specific property; the property however, must be real property, for the doctrine has no application to personal property. See BARCLAYS BANK OF NIGERIA LTD. V. ALHAJI ASHIRU (1978) 6-7 SC. 99 AT PAGE 128 and MATTHEW OKECHUKWU ENEKWE v. INTERNATIONAL MERCHANT BANK OF NIGERIA LIMITED. & ORS (2006) LPELR-1140 (SC) (Pp. 21 paras. E) respectively.” – Per AJI, JSC

 

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DOCTRINE OF LIS PENDENS – EXCEPTIONS/CIRCUMSTANCES WHERE THE DOCTRINE OF LIS PENDENS WILL BE APPLIED OUTSIDE MATTERS CONCERNING REAL PROPERTY

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“I will not want to make another law or re-establish another doctrine contrary to that laid down earlier that the doctrine of lis pendens applies to real property. However, in extenso, where the res or subject matter, during the pendency of a suit is to be tampered with, or where the decision of the Court is to be rendered useless, or there are steps to foist a fait accompli on the Court, or where a party may resort to self-help, the doctrine of lis pendens can apply in order to do substantial justice than adhere to technical justice as in the instant appeal.

Similarly, this Court, applied the doctrine of lis pendens outside the ‘res’ other than real property. Per George Adesola Oguntade, JSC, in MR. PETER OBI V. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS (2007) LPELR-2166(SC) (P. 104, PARAS. D-E), opined that under the doctrine of lis pendens, parties to proceedings pending in Court ought not to do anything which may have the effect of rendering nugatory the judgment of the Court.”

Furthermore, it was held that “The doctrine of lis pendens finds expression in the assertion that it prevents any transfer of any right or the taking of any steps capable of foisting a state of helplessness and/or hopelessness on the parties or the Court during the pendency in Court of an action and even after. By that doctrine, the law does not allow to litigant parties or give to them during the currency of the litigation involving the rights in it so as to prejudice any of the litigating parties. The doctrine negates and disallows any transfer of rights or interest in any subject-matter that is being litigated upon during the pendency of litigation in respect of the said subject-matter.”  See Per ADEREMI, JSC, in RT. HON. ROTIMI CHIBUIKE AMAECHI V. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS (2008) LPELR-446 (SC) (PP. 268 PARAS. D).

In any case, the Appellants’ cunning and subtle argument that it must involve real property and not personal is a distinction without a difference in this appeal. What then is the difference between real and personal property of/in KAN Biscuit Factory that was sold to De-Endy Industrial Company Limited by the Appellants during the pendency of the present suit? Without equivocation, KAN Biscuit Factory consists of the land and machinery sold during the pendency of the present suit. Whatsoever be the case, I am of the stern opinion that the sale was caught up by the doctrine of lis pendens. In essence, the sale must be set aside as void and transferring no title or property whatsoever.” – Per AJI, JSC

 

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DOCTRINE OF LIS PENDENS – WHETHER THE DOCTRINE OF LIS PENDENS CAN BE APPLIED TO OTHER SUITS

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“It must be reiterated that contrary to what learned appellants’ counsel forcefully contends, the doctrine of lis pendens applies beyond cases in respect of title or right to real property. This Court remains persistent in its view on the doctrine of lis pendens that any person who purchases any property or acquires any right which is the subject of a determination of the Court exposes himself to a probable trouble since the outcome may be against the vendor. See OLORI MOTOR COMPANY LTD & ORS V. UNION BANK OF NIGERIA PLC (2006) LPELR – 2589 (SC).

In AMAECHI V. INEC (2008) LPELR – 446 (SC), which is not a case in respect of real property, Aderemi JSC (of blessed memory) in his concurring contribution on the doctrine enthused as follows: –

“The doctrine of lis pendens finds expression in the assertion that prevents any transfer of any right or the taking of any steps capable of foisting a state of helplessness and/or hopelessness on the parties or the Court during the pendency in Court of an action and even after. By that doctrine, the law does not allow to litigant parties … to prejudice any of the litigating parties.

The doctrine negates and disallows any transfer of rights or interest in any subject matter that is being litigated upon during the pendency of litigation in respect of the said subject matter.” (Underlining supplied for emphasis)

See also ORONTI V. ONIGBANJO (2012) LPELR – 7804 (SC) and BAMGBOYE V. OLUSOGA (1996) LPELR – 736 (SC).

Yes, the doctrine does appear, majorly, to have been applied in real property disputes. That notwithstanding, the doctrine rests upon the firm foundation that no effective transfer of rights or interest in the subject matter of an action is facilitated during the pendency in Court of the action. See PROF. AJIBOYE AKINKUGBE V. EWULUM HOLDINGS NIGERIA LTD & ANOR (2008) LPELR – 346 (SC).

In the case at hand, the appellants, during the pendency of respondent’s appeal to the lower Court challenging the dismissal of its motion for interlocutory injunction, executed Deed of Sale in respect of Respondent’s factory to a third party. In the light of the seemingly endless chain of judicial authorities on the point, such a transfer cannot endure. I so hold.” – Per MUHAMMAD, JSC

 

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DOCTRINE OF LIS PENDENS – MEANING AND PURPOSE OF THE DOCTRINE OF LIS PENDENS – INSTANCES WHEN THE DOCTRINE OF LIS PENDENS CAN BE APPLIED

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“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 Ltd. v 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 NWEZE, JSC

 

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DOCTRINE OF LIS PENDENS – APPLICATION OF THE DOCTRINE OF LIS PENDENS

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“It is settled that the doctrine of lis pendens is applicable only when the subject matter of litigation is real property-land and not personal property or choses in action.

In ORONTI V. ONIGBANJO (2012) LPELR-7804 (SC) Pp. 15-17, paras. G-F:

“This Court had in Alhaji Usman Bua v. Bashiru Dauda (2003) 13 NWLR (Pt. 838) 657 per Uwaifo JSC reiterated the conditions on which the doctrine of lis pendens would apply. It was stated thus: That it must be shown (a) That at the time of the sale of the property the suit regarding the dispute about the said property was already pending. See Bellamy v. Sabine (1857) 26 LJ (NS) Equity Reports 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 AllER 484 at 489 and (d) That the other party had been served with the originating process in the pending action. See DRESSER UK LTD v. FALCONGALT FREIGHT MANAGEMENT LTD (1992) ALL ER 450 at 523. It must be stated that the four conditions above must co-exist before the doctrine of lis pendens would apply. Another way of saying it, is that the absence of any of those conditions would render inapplicable the doctrine. It is that simple. I refer to Nsirim v. Nsirim (1995) 9 NWLR (Pt. 418) 144, Enekwe v. International Merchant Bank of Nigeria Limited (2006) 19 NWLR (Pt. 1013) 147.”

 

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REASON FOR JUDGMENT – WHETHER AN APPELLATE COURT IS CONCERNED WITH THE CORRECTNESS OF THE DECISION APPEALED AGAINST

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“However, it is not the reasons for a judgment but the correctness of the decision that matters.

In MTN V. CORPORATE COMMUNICATION INVESTMENT LTD (2019) LPELR-47042 (SC) Pp. 18-19, paras. F-B, this Court held thus:

“As rightly submitted by learned counsel for the respondent, an appellate Court is more concerned with whether the decision reached by the lower Court is correct and not necessarily whether a wrong reason was given for reaching a right decision. See Arisa Vs The State (1988) 3 NWLR (Pt. 83) 386, Ojengbede vs Esan & Anor. (2001) 18 NWLR (Pt. 746) 771. If the decision is right, it will be upheld notwithstanding the fact that a wrong reason was given for the decision. It is only where the misdirection has caused the Court to come to a wrong decision that it would be material. See Oladele & Ors Vs Aromolaran II & Ors. (1996) 6 NWLR (Pt. 453) 180.”

” – Per OGUNWUMIJU, JSC

 

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DOCTRINE OF LIS PENDENS – WHETHER A COURT WILL ALLOW A PARTY TO DISPOSE OF THE SUBJECT MATTER OF LITIGATION

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“However, counsel seems to have lost sight of the fact that when a suit is pending before a Court, neither party is permitted to dispose of the subject matter of the suit in order not to overreach the other party. This is in accord with common sense and fair play.

In this case, the substantive suit before the trial Court and the Respondent’s appeal before the lower Court challenging the dismissal of its application for interlocutory injunction were still pending at the time the Appellants executed the Deed of Sale in favour of a third party. In the circumstance, the Appellants were precluded from transferring the factory of the Respondent, being the subject of litigation, to a third party. What the Appellants did is akin to self-help and taking the law into one’s hand in a matter over which the Courts were already seised. This has been condemned in several decisions. It has no place in a civilized society and this Court will not lend its judicial credence to it. See the cases of GOV. OF LAGOS STATE V. OJUKWU (1986) 1 NWLR (PT. 18) 621, OKOCHI V. ANIMKWOI (2003) 18 NWLR (PT. 851) 1 AND AGBAI V. OKOGBUE (1991) 7 NWLR (Pt. 204) 391. The sale of the said factory is therefore void ab initio and liable to be set aside.” – Per JAURO, JSC

 

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CASES CITED

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Not Available

 

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STATUTES REFERRED TO

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Not Available

 

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