ALHAJI AMINU ALTINE & ANOR v. AFRIBANK PLC(2000)

ALHAJI AMINU ALTINE & ANOR v. AFRIBANK PLC

(2000)LCN/0829(CA)

In The Court of Appeal of Nigeria

On Thursday, the 15th day of June, 2000

CA/K/261/96

JUSTICES

ISA AYO SALAMI Justice of The Court of Appeal of Nigeria

RABIU DANLAMI MUHAMMAD Justice of The Court of Appeal of Nigeria

MAHMUD MOHAMMED Justice of The Court of Appeal of Nigeria

Between

ALHAJI AMINU ALTINE
2. NORTHERN GENERAL CONTRACTOR LTD. Appellant(s)

AND

AFRI BANK PLC Respondent(s)

RATIO

THE DOCTRINE OF LIS PENDENS

The doctrine of lis pendens is derived from the Latin Maxim ‘pendente lite nihil innovetur’ which means nothing should change during the pendency of an action. The purpose of the doctrine is to force either of the parties to a litigation to preserve the subject-matter of the litigation. See Adaran Ogundiani v. O. A. L. Araba (1978) 6-7 SC 55; Okafor v. A.G. Anambra State (1988) 2 NWLR (pt. 79) 736; and Alakija v. Abdulai (1998) 6 NWLR (Pt. 552) 1. In Ogundiani v. Araba (supra) the Supreme Court stated the scope and operation of lis pendens at pages 78 that: –
“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 the action. In its application against any 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.” PER MUHAMMAD, J.C.A

THE IMPORTANCE OF SERVICE OF WRIT OF SUMMONS

The importance of service of a writ of summons cannot be overemphasized. In Craig v. Kanseen (1943) 1 All ER 108 Lord Greene, M.R. stated at page 113 that:
“…It is beyond question that failure to serve process where service of process is required, is a failure which goes to the root of our conception of the proper procedure in litigation. Apart from proper ex-parte proceedings, the idea that an order can validly be made against a man who has had no notification of any intention to apply for it is one which has never been adopted……”
Moreover, a court can only be competent to adjudicate over a matter only when all the conditions precedent for its having jurisdiction are fulfilled. See Madukolu v. Nkemdilim (1962) 2 SCNLR 341 at 348 (1992) 1 All NL 587 where Bairamian F. J. stated at page 595:-
“(A) Court is competent when-
(1) it is properly constituted as regards number and qualifications of the members of the bench, and no member is disqualified for one reason or another; and
(2) the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and
(3) the case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.
Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided. The defect extrinsic to the adjudication.”
It could be seen from the authorities that service of a writ of summons on the defendant is fundamental. Where the defendant has not been served the court is not competent to adjudicate over the matter and where it does adjudicate the proceedings are a nullity: See Skenconsult (Nig) Ltd v. Godwin Senkody Ukey (1981) 1 SC 6. Nnamdi, J.S.C. stated at page 26:
“The service of process on the defendant so as to enable him appear to defend the relief being sought against him and due appearance by the party or any counsel must be those fundamental conditions precedent required before the court can have competence and jurisdiction. This very well accords with the principles of natural justice.” PER MUHAMMAD, J.C.A

THE DUTY OF THE JUDGE IN AN APPLICATION FOR THE GRANT OF INTERLOCUTORY INJUNCTION PENDING THE DETERMINATION OF THE SUBSTANTIVE CLAIM

In an application for the grant of interlocutory injunction pending the determination of the substantive claim, the judge has a duty to ensure that he does not in the determination of the application determine the same issues that would arise for determination in the substantive suit as it is not proper for the court at that stage to express any opinion as to such rights as such an opinion might give the impression that the court has made up its mind on the substantive issue for trial before it. See A.C.B. Ltd v. Awogboro (1996) 3 NWLR (Pt. 437) 383; Orji v. Zaria Ind. Ltd (1992) 6 NWLR (Pt. 216) 124. The Court should also desist from making orders touching on substantive issue at interlocutory stage. See Ojukwu v. Military Governor of Lagos State (1986) 3 NWLR (Pt. 26) 39 Nnaemeka Agu, J.C.A. (as he then was) said at page 45: –
“I cannot over emphasise the need of trial Judges in interlocutory rulings desisting from making any findings which may prejudice the substantive case. It is true that if the above findings were rightly made and allowed to stand, they have completely knocked the bottom out of substantive suit.”
See also Akapo v. Hakeem-Habeeb (1992) 6 NWLR (Pt. 247) 266; Kotoye v. Saraki (1994)7 NWLR (Pt.357) 414 and Egbe v. Onogun (1972) 1 All NLR (Pt.1) 95. PER MUHAMMAD, J.C.A.

WHETHER OR NOT THE COURT CAN GIVE PARTIES IN LITIGATION THE RIGHTS IN A PROPERTY IN DISPUTE SO AS TO PREJUDICE THE OTHER PARTY

It is common ground herein that the law does not allow the parties in litigation and give them, pending the litigation, rights in the property in dispute so as to prejudice the opposite party per Turne, L. J., in Bellamy v. Sabine (1857) 56 L.J Ch 797, 801 which was cited with approval in Barclays Bank of Nigeria Ltd. v. Ashiru (1978) 1 LRN 266,276. See also Ogundiani v. Araba (1978) 1 LRN 280, 289-290, (1978) 6-7 SC 55; Ebueku v. Amola (1988) 2 NWLR (Pt. 75) 128, Akande v. Alaga (1988) 4 NWLR (Pt. 86) 1 and Bamgboye v. Olusoga (1996) 3-4 MAC 82, (1996) 4 NWLR (pt.444) 520. PER SALAMI, J.C.A.

MUHAMMAD, J.C.A. (Delivering the Leading Judgment): The appellants herein were the plaintiffs at the lower Court.
They filed an action at the Kaduna High Court against the respondent claiming the following reliefs: –
“(1) A declaration that the plaintiff’s late father Alhaji Umaru Altine had cleared all of his outstanding loan at the defendant bank, well before June, 1991.
(2) Or in the alternative: A declaration that the defendant had failed to enforce any claim which they may have on the account at the High Court, Kaduna since October 1996, and as a result, that any claim which they may have against their said customers, have become statute – barred.
(3) That as a result, the defendant shall be ordered to release all of the plaintiff’s family title documents for plot No. 2A, Alkali Road, Kaduna previously mortgaged to the defendant.”
This writ of summons was paid for on 12th August, 1996 but it was not issued until 16th August, 1996. On the 15th day of August, 1996 the appellants filed a motion on notice asking for the following reliefs:-
“(1) An order granting an interim injunction, and thereafter a permanent injunction restraining the defendant and or their servants or agents or otherwise, from selling or purporting to sell the landed property of the plaintiff’s family at No. 2A, Alkali Road, GRA, Kaduna pending the determination of this case.
(2) An order amending the writ to include Northern General Contractors Limited as the 2nd plaintiff in this suit.”
(3) And for such further or other order as the Honourable Court may deem fit to make in the circumstances- of this suit.”
The motion was supported by a twenty-one paragraph affidavit. The Respondent filed a counter-affidavit of sixteen paragraphs. After hearing arguments and submissions from both the applicants’ and respondent’s Counsel, the trial Judge granted the prayer for joinder of Northern Contractors Limited as the second plaintiff. He however refused to grant the first prayer i.e. for interim injunction. In his ruling the learned trial Judge stated:-
“A careful perusal of the affidavit before me does not disclose to me what legal right of the applicant is in imminent (sic) of violation, neither is it shown anywhere that damages cannot adequately compensate (them) applicants. It is apparent that the property whose sale the applicants want restrained was mortgaged for a loan. Nothing has been exhibited before the court to show that the loan has been repaid. I agree with the learned Counsel for the respondent that Exhibit A attached to the affidavit in support cannot be such evidence, in view of Exhibit B which came much later in time.
In any case, I have my doubts about the correctness of granting an injunction for the sale of property which has already been sold. See Ogbonnaya v. Adapalm (supra) at page 33.
The principle of lis pendens relied upon by applicant’s Counsel is applicable in this case where the property had been sold before the respondent’s were served with the writ. As Mr. Makpu pointed out the property was sold on the 12/8/96 and the respondents were served with the writ on the 18th of August, 1996. It is immaterial that the writ was taken out on the 12/8/96 the same day the sale was conducted. As the writ had no magical power. The respondents could not have been aware of it until it was served on them.
It is clear from all that I have been saying that prayer (one) 1 cannot be granted. It is accordingly hereby dismissed.”
Dissatisfied with this decision the appellants appealed to this Court on three grounds of appeal. The grounds of appeal are:-
“Ground One
The learned trial Judge erred in law in holding at an interlocutory stage of proceedings in effect, that the plot of land No. 2A, Alkali Road, GRA, Kaduna was already sold when this was a main issue in the substantive case.
Particulars
(1) In the case of Dr. Ogbonnaya v. Adapalm Ltd (1993) 5 NWLR (Pt.292) 147 (1993) 6 SCNJ (Pt. One) P.23 at 32 the Supreme Court had held that the trial High Court must always avoid prejudging a substantive issue at an interlocutory stage of any proceeding.
The sale notice was obviously inadequate and both the filing of the writ and the purported sale of the house had taken place on the 12/8/96.
“Ground Two
The learned trial High Court erred in law by holding that the doctrine of lis pendens does not apply in this matter.
Particulars
(1) On page 5 of the ruling, the learned trial Judge had remarked “…by what magic is the defendant/respondent supposed to know that a writ of summons had been filed against him by the doctrine of lis pendens…”
(2) By so doing the learned trial Court had ignored the submissions of the appellants – applicants’ counsel, that the doctrine of lis pendens is not based on notice to the other party – that it is enough that the writ had been filed.
Ground Three
The learned trial High Court erred in law by failing to apply a dispassionate consideration of the evidence properly submitted for the determination of the true issues before the court and thereby came to a wrong decision in its ruling.
Particulars
(1) The trial Court wrote about ‘magic’ in its ruling, when there was no cause whatsoever for doing so.
(2) The trial Court also held that the applicant had not proved that it had repaid the bank loan in its ruling, when this was a main issue in the substantive case.
(3) See the decision of the Supreme Court in Polycarp Ojogbue v. Ajie Nnubia (1972) 6 SC 227.”
The appellants in their brief formulated three issues for determination. The issues are: –
“(1) Whether having regard to Exhibit ‘A’…. The Honourable learned trial Judge was right in holding that the doctrine of lis pendens does not apply until the writ of-summons had been served upon the respondent?.
(2) Whether having regard to Exhibit ‘A’…… The Honourable learned trial Judge was right in not granting an order of injunction restraining the respondent from disposing of the landed property?.
(3) Whether particularly having regard to the fact that the respondent (sic) annexed any legal evidence in support of their counter-affidavit, the Honourable learned trial Judge was right in holding that the property sold and/or dismissing the motion for interlocutory injunction?.
The respondent, in its brief identified two issues for determination. Having regards to the grounds of appeal filed, I am of the opinion that neither the issue formulated by the appellants nor those formulated by the respondent are apt for the determination of the appeal. I believe the following issues will effectively dispose of the appeal:-
(1) Whether or not the trial Judge was right in holding that the doctrine of lis pendens does not apply?.
(2) Whether or not the trial Judge has decided the main issue in the substantive case while considering the motion for interlocutory injunction?.
The appellants in their brief submitted that from the circumstances of the case, the doctrine of lis pendens applied ever before the writ of summons was served on the respondent bank and that want of actual notice of the pendency of the suit does not prevent the doctrine from operating. The case of Bamgboye v. Olusoga (1996) 3-4 MAC 82, (1996) 4 NWLR (Pt. 444) 520 was referred to in support of the submission. It was submitted that when the sale purportedly took place, the suit was already in existence. It was further submitted that the purported sale was done malafide and with the constructive knowledge that there was a pending litigation. It was also submitted that the mere averment that the property was sold without exhibiting any evidence of sale is not enough. See Okeke v. Attorney General of Anambra State (1992) 1 NWLR (Pt.215) 60.
The respondent in its brief submitted that when the sale of the property took place there was no service of the writ on the respondent and that service must first be effected before the respondent would become aware of any pending suit. It was also submitted that failure to serve a process where obligatory is not an irregularity but fundamental. It was submitted that service of court processes are foremost in the preliminary steps taken in any suit and all cases that were conducted in the absence of such service were held to breach the rules of natural justice. It was finally submitted that since the respondent was not served with the writ of summons, the actions of the respondent were carried out properly, legitimately and with the backing of the law.
It is the contention of the respondent that it was never served with the writ of summons when it sold the property in question and as such the doctrine of lis pendens does not apply. The doctrine of lis pendens is derived from the Latin Maxim ‘pendente lite nihil innovetur’ which means nothing should change during the pendency of an action. The purpose of the doctrine is to force either of the parties to a litigation to preserve the subject-matter of the litigation. See Adaran Ogundiani v. O. A. L. Araba (1978) 6-7 SC 55; Okafor v. A.G. Anambra State (1988) 2 NWLR (pt. 79) 736; and Alakija v. Abdulai (1998) 6 NWLR (Pt. 552) 1. In Ogundiani v. Araba (supra) the Supreme Court stated the scope and operation of lis pendens at pages 78 that: –
“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 the action. In its application against any 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.”
It could be seen that a person who buys property during pendency of litigation in respect of the property, though without actual notice and for valuable consideration bought for himself a litigation and the purchase will be set aside. The question now is – does the doctrine of lis pendens apply to our present case. The respondent’s contention is that it was not served with the writ of summons and as such it was not aware of the pendency of the suit whereas the appellants’ contention is that it is not material that the respondent was not aware of the pendency of the suit as long as the suit was pending when it sold the property.
The importance of service of a writ of summons cannot be overemphasized. In Craig v. Kanseen (1943) 1 All ER 108 Lord Greene, M.R. stated at page 113 that:
“…It is beyond question that failure to serve process where service of process is required, is a failure which goes to the root of our conception of the proper procedure in litigation. Apart from proper ex-parte proceedings, the idea that an order can validly be made against a man who has had no notification of any intention to apply for it is one which has never been adopted……”
Moreover, a court can only be competent to adjudicate over a matter only when all the conditions precedent for its having jurisdiction are fulfilled. See Madukolu v. Nkemdilim (1962) 2 SCNLR 341 at 348 (1992) 1 All NL 587 where Bairamian F. J. stated at page 595:-
“(A) Court is competent when-
(1) it is properly constituted as regards number and qualifications of the members of the bench, and no member is disqualified for one reason or another; and
(2) the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and
(3) the case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.
Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided. The defect extrinsic to the adjudication.”
It could be seen from the authorities that service of a writ of summons on the defendant is fundamental. Where the defendant has not been served the court is not competent to adjudicate over the matter and where it does adjudicate the proceedings are a nullity: See Skenconsult (Nig) Ltd v. Godwin Senkody Ukey (1981) 1 SC 6. Nnamdi, J.S.C. stated at page 26:
“The service of process on the defendant so as to enable him appear to defend the relief being sought against him and due appearance by the party or any counsel must be those fundamental conditions precedent required before the court can have competence and jurisdiction. This very well accords with the principles of natural justice.”
It is therefore my considered opinion that where a defendant has not been served with the writ of summons and has no knowledge, actual or constructive, that he has been sued by a plaintiff, cannot be said to be aware of the existence of a suit against him. And where he sold a property before he is served with the writ of summons, it cannot be said that he sold the property during the pendency of the suit. As far as he is concerned, the suit does not exist as such it could not be pending.
I will now consider the evidence adduced before the lower Court to determine whether or not the respondent was served with the writ of summons before it sold the property. From the endorsement on the writ of summons, the writ was paid for on 12/8/96. It was dated 16/8/96 and the defendant was not served until 18/8/96.
The learned trial Judge also found: –
“The property was sold on 12/8/96 and the respondent were served with the writ on the 18th of August, 1996.”
This finding of fact has not been challenged by the appellants. I therefore find that the respondent was not served with the writ of summons on the date it sold the property and a fortiorari the doctrine of lis pendens does not apply. My answer to the first issue for determination is therefore negative.
The second issue is whether the trial Judge has decided the main issue in the substantive case while considering the motion for interlocutory injunction. The appellants submitted in their brief that the trial Judge erred in law in holding at the preliminary stage of the case that the land in dispute had already been sold when the main issue to be determined in the substantive suit is whether or not the land had been sold. It was submitted that a court should never determine the substantive issue at the stage of interlocutory injunction. The following cases were cited in support of the above submission:- Alao v. Commissioner of Police (1987) 4 NWLR (Pt. 64) 1994; Nortune v. Gambo (1978) 3-4 SC 54.
In an application for the grant of interlocutory injunction pending the determination of the substantive claim, the judge has a duty to ensure that he does not in the determination of the application determine the same issues that would arise for determination in the substantive suit as it is not proper for the court at that stage to express any opinion as to such rights as such an opinion might give the impression that the court has made up its mind on the substantive issue for trial before it. See A.C.B. Ltd v. Awogboro (1996) 3 NWLR (Pt. 437) 383; Orji v. Zaria Ind. Ltd (1992) 6 NWLR (Pt. 216) 124. The Court should also desist from making orders touching on substantive issue at interlocutory stage. See Ojukwu v. Military Governor of Lagos State (1986) 3 NWLR (Pt. 26) 39 Nnaemeka Agu, J.C.A. (as he then was) said at page 45: –
“I cannot over emphasise the need of trial Judges in interlocutory rulings desisting from making any findings which may prejudice the substantive case. It is true that if the above findings were rightly made and allowed to stand, they have completely knocked the bottom out of substantive suit.”
See also Akapo v. Hakeem-Habeeb (1992) 6 NWLR (Pt. 247) 266; Kotoye v. Saraki (1994)7 NWLR (Pt.357) 414 and Egbe v. Onogun (1972) 1 All NLR (Pt.1) 95. Where a relief in an interlocutory matter has the same substratum with the relief in the substantive suit, the court should refrain from granting it. The appropriate course, the court should take, is to refuse the application and accelerate the hearing of the substantive suit.
The question now is has the learned trial Judge decided the main issue of the substantive case at an interlocutory stage when he held that the land in dispute has already been sold? In his ruling, this is what the trial Judge said: –
“In any case, I have doubts about the correctness of granting an injunction for the sale of property which has already been sold. See Ogbonnaya v. Adapalm (supra) at page 33.”
I have at the very beginning of this judgment reproduced in its entirety the appellants’ claim in the substantive suit. Briefly put, the appellants are asking for a declaration that the 1st appellant’s father had cleared all his outstanding loan, well before June 1991 or in the alternative a declaration that any claim, the defendant (i.e. the respondent) may have against the appellants has become statute barred and as a result the respondent should be ordered to release the title documents for plot No. 2A Alkali Road, Kaduna to the appellants. Above is the summary of the appellants’ substantive claims. They are seeking for a declaration that the 1st appellant’s father has paid the loan or in the alternative, a declaration that the respondent’s claim is statute-barred. The claim has nothing to do with the sale of the house and as such the trial Judge’s findings that the house has been sold has in no way determined the main issue in the substantive suit at an interlocutory stage. The sale of the house is not an issue in the substantive claim.
It is not in dispute that the property in question has been sold on 12/8/96. The appellants, in their affidavit in support of the motion, admitted that they heard that the property has been sold. It was averred in paragraph 13 of the affidavit in support:
That thereafter news had reached the plaintiff of an attempted public auction sale by the defendant which had only taken about 1 minute of bell ringing and whispering by some three or four persons on the premises of the said house at about the said 10am on the 12/8/96.”
The above averment is in accord with the respondent’s averment in paragraph 10 of its counter-affidavit where it was stated that the property was sold on 12/8/96. The said paragraph 10 reads: –
“That the sale of the mortgaged property took place on the 12th day of August, 1996 after same was duly advertised publicly on papers to the knowledge of all parties in this suit, as per Exhibit B attached to the affidavit in support.”
The learned trial Judge was therefore right in holding that the property has been sold on 12/8/96. It is trite that when a court is asked to restrain a party from doing an act pending the decision in a matter before it, but the act has been done, no order to restrain will be made. An interlocutory injunction is not a proper remedy for an act which has already been concluded and will not be granted, even if the act complained of is irregular. See Ajewole v. Adetimo (1996) 2 NWLR (Pt. 431) 391; A. G. of Anambra State v. Okafor (1992) 2 NWLR (Pt. 224) 396 and John Holt Nig. Ltd v. Holt of Africa Workers Union of Nigeria and Cameroon (1963) 2 SCNLR 383. Since the house has been sold, the court can no longer grant an interlocutory injunction restraining the sale of the said house. It has already been sold. The court does not act in vain.
In conclusion, the appeal lacks merit and is dismissed. I affirm the decision of Abiriyi J. The respondent is entitled to cost which I assess at N2,500.

SALAMI, J.C.A.: I read before now the judgment just delivered by my learned brother R. D. Muhammad, J.C.A. and agree with the conclusion arrived thereat.
What is in dispute, in the appellants’ first issue, is whether there was in existence a litigation at all time material to the sale of the mortgaged property. It is common ground herein that the law does not allow the parties in litigation and give them, pending the litigation, rights in the property in dispute so as to prejudice the opposite party per Turne, L. J., in Bellamy v. Sabine (1857) 56 L.J Ch 797, 801 which was cited with approval in Barclays Bank of Nigeria Ltd. v. Ashiru (1978) 1 LRN 266,276. See also Ogundiani v. Araba (1978) 1 LRN 280, 289-290, (1978) 6-7 SC 55; Ebueku v. Amola (1988) 2 NWLR (Pt. 75) 128, Akande v. Alaga (1988) 4 NWLR (Pt. 86) 1 and Bamgboye v. Olusoga (1996) 3-4 MAC 82, (1996) 4 NWLR (pt.444) 520.
The real issue in controversy is, therefore, existence or otherwise of litigation at the time of sale because disposal of property to litigation before the out-come of litigation is known renders disposal void. It is immaterial whether the purchaser had notice, express or constructive, because the doctrine denies the vendor the power to transfer rights or interest in any real property during the pendency of an action in court.
To enjoy the protection offered by the doctrine, the appellants contended, in their brief, that the sale was lis pendens at the time of the sale of the property and therefore the sale was void. It seems to me, on the pleadings and evidence, the issue calling for determination is a very narrow one. It is whether on 12th August, 1996 when the property was sold as held by the learned trial Judge there was an action is existence. The burden of proof is on the appellant who so asserted. Section 135(1) of the Evidence Act provides: –
“135(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.”
(Italics mine)
The appellants having asserted that the action had been brought in court before the transaction took place had the burden of proof to prove the existence of the fact. The evidence before the Court which the Court accepted was to the effect that the sale took place on 12th August, 1996 while the writ of summons was paid for on the same day but it was not issued until 16th August, 1996. Although learned counsel for the appellants sought to show that the payment of the filing fees was earlier in time than the sale but there is no iota of evidence showing that the writ of summons was paid for earlier than 10 a.m. on 12th August, 1996 when the sale took place. In the result, the transaction for the transfer of the property was concluded prior to the payment of the filing fees on 12th August, 1996. Consequently, I am of the firm view that there was no action pending at all time material to the sale. The doctrine of lis pendens is inapplicable and does not avail the appellants in the circumstance of this case.
Finally, can it be rightly contended that the writ of summons dated 16th August, 1996 was infact in existence on 12th August, 1996 when it was merely applied and paid for? I do not think that merely applying or paying for the filing fees ipso facto brought the writ into existence. The payment of the filing fees was a mere application for or preliminary steps towards issuance of a writ of summons which would signal the birth of the action. In this connection Orders 1 and 5 of the Kaduna State High Court (Civil Procedure) Rules Cap 68 of the Laws of Kaduna State of Nigeria, 1991 are pertinent. Order 1 rule 1 provides for mode of commencement of an action. It states that civil proceedings might be commenced by writ, originating summons, originating motions or petition. Order 5 rule 1 lays down the procedure for issuance of a writ of summons which is the process presently in contention. It provides that a writ of summons shall be issued on application, written or oral, as the case may be. Order 5 rule 1 reads as follow:-
“1. A writ of summons shall be issued by the Registrar, or other officer of the court empowered to issue summonses, on application. The application shall ordinarily be made in writing by the plaintiff’s solicitor by completing Form 1 in the Appendix to these rules, but the Registrar, or other officer as aforesaid, where the applicant for a writ of summons is illiterate, or has no solicitor, may dispense with a written application and instead himself record full particulars of an oral application made and on that record a writ of summons may be prepared, signed and issued.” (Italics mine)
A writ of summons can be prepared signed and issued by a Registrar or other officer of the court on application. The payment made on 12th August, 1996 was probably in respect of application for a writ of summons. An action is not thereby commenced until a writ of summons is prepared, signed and issued by the Registrar or other officer of the court. The payment was a mere preparation for issuance of a writ of summons which remained inchoate until and when a writ of summons is issued. The writ of summons in the instant appeal, was not issued until 16th August, 1996, four clear days after the sale of the property had been concluded. It is the preparation, signing and issuance of the writ of summons that heralds the commencement of an action and not the payment of the filing fees. I am encouraged, in this view, by Order 5 rule 16(1) of the High Court (Civil Procedure) Rules Cap 68 which fixes the duration of a writ of summons. It enacts that a writ is “valid in the first instance for twelve months beginning from the date of its issue”. If the life span of a writ is reckoned from the date it was issued it follows that that was the date it was issued and not at some prior date when step or steps were taken to bring it into being.
In the result, the action leading to this appeal was not commenced until 16th August, 1996. Consequently, the doctrine of lis pendens does not arise, in the circumstance of this case, the sale having been concluded on 12th August, 1996.
For this reason and the fuller reason contained in the lead judgment of my learned brother, R. D. Muhammad, J.C.A., I too, dismiss the appeal and endorse all the consequential orders contained in the lead judgment of my learned brother, Muhammad, J.C.A.

MOHAMMED, J.C.A.: I have had the privilege before today of reading the judgment of my learned brother Muhammad, J.C.A. which he has just delivered. I entirely agree with his conclusion in dismissing this appeal.
This interlocutory appeal is against the ruling of Abiriyi J. of the Kaduna High Court of 3/9/96 refusing the appellants’ application for the relief of interlocutory injunction pending the determination of the substantive suit pending before that court. The appellant having relied heavily on the issue of lis pendens in this appeal, I shall comment briefly on that issue. The old doctrine of lis pendens was that if property was in question or dispute in a suit or action, it could not be alienated during the pendency of that suit or action, even to a purchaser or mortgagee without notice. This doctrine was explained by the Supreme Court in Ogundaini v. Araba & Barclays Bank of Nigeria Ltd (1978) 6 & 7 SC 55 at 78 where Idigbe, J.S.C. (as he then was) said: –
“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 the action. In its application against any 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 the litigant parties or give to them during the currency of the litigation involving any property rights in such property (i.e. property in dispute) so as to prejudice any of the litigating parties.”
Simply put, the doctrine of lis pendens operates to prevent the effective transfer of any property in dispute during the pendency of that dispute. It is quite irrelevant whether the purchaser has notice – actual or constructive. The doctrine is really designed to prevent the vendor from transferring any effective title to the purchaser by depriving him (the vendor) of any rights over the property during the currency of the litigation or the pendency of the suit. That being the position, the principle of nemo dat quod non habet will apply to defeat any sale or transfer of such property made during the currency of litigation or pendency of the action. See Osagie v. Oyeyinka (1987) 3 NWLR (Pt.59) 144 at 156.
In the instant case, the question is whether having regard to the evidence on record the appellant’s landed property at No. 2A Alkali Road, GRA Kaduna was sold by the respondent during the pendency in court of the action filed by the appellant on 12/8/96. Taking into consideration the averments in paragraph 10 of the appellant’s affidavit in support of his application at the Court below and the notice of the auction sale Exhibit ‘B’ to that affidavit and paragraph 11 of the respondent’s counter-affidavit, it is quite clear that the property in dispute between the parties at the court below was sold after 10 a.m. on 12/8/96, the same date the appellant’s action was also filed. Although the appellant attempted to show by the averment in paragraph 11 of his affidavit in support of his application that the filing of his suit at 9: a.m. that day took place before the sale of the property after 10 a.m. the same day 12/8/96, the facts averred in that paragraph 11 of the affidavit not having come from the person who actually filed the writ of summons at the Court below is nothing but hearsay evidence which in law can not support the appellant’s assertion that the substantive suit was filed at 9:a.m. on 12/8/96 before the sale of the property in dispute. Thus, in the absence of clear evidence as to the time the appellant’s action was filed on 12/8/96 at the Court below, it cannot be said that the sale of the property in dispute took place on 12/8/96 while the appellant’s action was pending at the Court below. For this reason, I entirely agree with the lower Court that the doctrine of /is pendens did not arise in the present case.
Accordingly, for the above and more fuller reasons given in the lead judgment of my learned brother Muhammad, J.C.A., I also dismiss this appeal and abide by the costs awarded in the leading judgment.
Appeal dismissed.

Appearances