MR. KOLAWOLE ORONTI VS ALHAJI S. A. ONIGBANJO

CORAM

BODE RHODES VIVOUR JUSTICE, SUPREME COURT

PARTIES

MR. KOLAWOLE ORONTI APPELLANTS

ALHAJI S. A. ONIGBANJO

RESPONDENTS 

AREA(S) OF LAW

SUMMARY OF FACTS

The respondent as plaintiff filed an action for declaration of right of occupancy, damages for trespass and perpetual injunction at the High Court as against the appellant/defendant, who in reply filed a preliminary objection claiming that the land in dispute was purchased during the pendency of another suit. The objection was dismissed at the High Court and the Court of Appeal upheld the judgment of the trial Court.?

HELD

Appeal dismissed

ISSUES

1.Whether the doctrine of lis pendens enures in favour of the defendant so as to defeat the plaintiff’s claim.?

RATIONES DECIDENDI

MEANING OF LIS PENDENS

“When a suit is pending in court where for example ownership of land is in issue, the parties are required to maintain the status quo ante bellum. If a party to the suit alienates/sells the land pendent lite the doctrine of lis pendens operates to prevent the effective transfer of rights in the land to a third party” PER RHODES-VIVOUR, JSC

CONDITIONS ON WHICH THE DOCTRINE OF LIS PENDENS WILL APPLY

“That it must be shown,
That at the time of the sale of the property the suit regarding the dispute about the said property was already pending.
That the action or lis was in respect of real property; it never applies to personal property.
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
That the other party had been served with the originating process in the pending action.” PER PETER-ODILI, JSC

EFFECT OF SALE OF PROPERTY DURING THE PENDENCY OF A SUIT

“If the defendant alienates/sells the land pendent lite, and eventually the plaintiff wins the case, the result of the judgment will overreach such alienation. Any purchaser of property during the pendency of a suit wherein ownership of the property is in issue must await the outcome of the suit.” PER RHODES-VIVOUR, JSC

APPLICATION OF THE DOCTRINE OF LIS PENDENS

“For the doctrine of lis pendens to apply the suit which alienation of the land was made pendent lite must be concluded on the merits. Furthermore it is immaterial if the third party purchaser has notice, actual or constructive before he brought the property, and the doctrine applies only to real property.” PER RHODES-VIVOUR, JSC

CASES CITED

Bellamy v. Sabine [1857] 26 L.J. (N.S) Equity Reports 797 at 803Wigram v. Buckley [1894] 3 Ch. 483 at 492-493Calgary and Edmnton Hand Co v. Dobinson [1974] 1 All ER 484 at 489Dresser UK Ltd v. Falcongale Freight Management Ltd [1992] All ER 450 at 523

STATUTES REFERRED TO

NONE

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