CROWN ESTATES LTD. v. ADERINOLA ADEWUNMI (IN RE: ADEMOLA ODUTOLA)
In The Court of Appeal of Nigeria
On Wednesday, the 17th day of April, 2002
GEORGE ADESOLA OGUNTADE Justice of The Court of Appeal of Nigeria
PIUS OLAYIWOLA ADEREMI Justice of The Court of Appeal of Nigeria
CHRISTOPHER MITCHELL CHUKWUMA-ENEH Justice of The Court of Appeal of Nigeria
CROWN ESTATES LIMITED – Appellant(s)
IN RE: ADEMOLA ODUTOLA – Respondent(s)
OGUNTADE, J.C.A. (Delivering the Lead Ruling): At the Ikeja High Court of Lagos State there was a dispute between the defendant/appellant and the plaintiff/respondent as to the ownership of land situate at Maryland Crescent, Onigbongbo, Maryland, Lagos. The plaintiff/respondent had claimed following reliefs:
“(1) A declaration that the plaintiff is the rightful holder of the certificate of occupancy in respect of all that piece or parcel of land situate, lying and being at Maryland Crescent, Onigbongbo, Maryland, Lagos.
(2) The sum of N 100,000.00 as General damages for trespass committed by the defendant, its servants and or agents on the said land covered by survey plan No. LA/332/93 dated 22nd day of December, 1993.
(3) An order of perpetual injunction restraining the defendant, its servants and or agent or privies from further committing acts of trespass on the said land.”
On 13th July, 1995, Adagun, J. (as he then was) gave judgment in favour of the plaintiff/respondent. Dissatisfied the defendant/appellant brought before this court an appeal against the judgment of the lower court. The appeal is still pending before this court. On 26/3/01, the applicant brought before this court an application seeking leave to be joined to the appeal as “a party and/or an interested and necessary party …”
The applicant filed an affidavit in support of the application. The defendant/respondent filed a counter-affidavit on 18/5/01. We heard the application on 6/2/02. Mr. Dele Awokoya, of counsel for the applicant in moving the application said that the same was brought pursuant to section 243 of the Constitution of the Federal Republic of Nigeria, 1999. He stated that the applicant had an interest in the subject-matter of the dispute between the plaintiff/respondent and the defendant/respondent in the appeal before this court. That interest was said to have arisen as a result of the applicant buying from the plaintiff/respondent a portion of the land in dispute between the two respondents. Counsel referred to Col. H. Yakubu v. Governor of Kogi State (1995) 8 NWLR (Pt.414) 386 at 390. He said that judgment was given in 1995 and the applicant acquired his interest from plaintiff/respondent in year 2000.
Mr. Ayo Orobowale, of counsel for the defendant/respondent said that there was no deposition in the affidavit in support of the application that the applicant bought the land in the year 2000. He said that in any case, the notice of appeal was filed in 1999. Counsel relied on the doctrine of lis pendens and the following cases:
(i) Ogunsola v. NICON (1991) 4 NWLR (Pt. 188) 762 at
(ii) Ebueku v. Amola (1988) 2 NWLR (Pt. 75) 128 at 132
(iii) Abhulimen v. Namme (1992) 8 NWLR (Pt. 258) 202.
Counsel finally relied on section 22 of the Land Use Act, 1978.
In this ruling, I like to first set out the provisions of Section 243 of the 1999 Constitution under which the applicant claimed to have brought his application. The Section reads:
“243: Any right of appeal to the Court of Appeal from the decisions of the Federal High Court or High Court conferred by this Constitution shall be –
(a) exercisable in the case of civil proceedings at the instance of a party thereto or with the leave of the Federal High Court or the High Court or the Court of Appeal at the instance of any other person having an interest in the matter and the case of criminal proceedings at the instance of an accused person or subject to the provisions of this Constitution and any powers conferred upon the Attorney-General of the Federation or the Attorney-General of a State to take over and continue or discontinue such proceedings, at the instance of such other authorities or persons as may be prescribed;
(b) exercised in accordance with any Act of the National Assembly and rules of court for the time being in force regulating the powers, practice and procedure of the Court of Appeal.” (italics mine)
To be able to qualify to appeal against the decision of a court in a matter in which he was not a party, an applicant must show that he has an interest in the subject matter of the dispute. It seems to me that as the Constitution does not define the quantum of such interest, the interest may be substantial or nominal. In either case, it must be an interest which is cognisable under the general law. It cannot be a vague or nebulous interest; it must be such as can be supportable by argument in the appellate court. Therefore an applicant must exhibit his proposed grounds of appeal and the judgment against which he seeks to appeal as an interested party. It must be remembered that the purpose of section 243 of the Constitution is not to let in a person as a policeman to watch-over how the direct parties to the dispute are protecting the applicant’s rights or interest.
In determining whether or not to grant leave, the court must relate the proposed grounds of appeal against the decision sought to be appealed against in order to determine whether indeed an applicant has a role to play in the appeal in protection of his interests.
In paragraphs 3 to 10 of the affidavit in support of the application, the applicant deposed:
“3. That the parcel of land in issue in suit No. ID/531/95 between the plaintiff/respondent and the defendant/appellant became vested in the plaintiff/respondent by virtue of its being purchased from the Kuyasi – Awushe family of Onigbongbo, which family from time immemorial, by prior settlement, had been in uninterrupted possession of the said land and have been exercising various acts of possession and ownership over same.
4. That by virtue of the said purchase, the plaintiff/respondent became the beneficial owner of the parcel of land and the holder of the Lagos State Certificate of Occupancy dated 29th day of June, 1994 and registered as number 34 at page 34 in volume 1994 at the Lands Registry, at Alausa, Ikeja, Lagos State.
5. That further to paragraph 3 above, the said parcel of land has been the subject of litigation at the High Court of Lagos State, Ikeja Judicial Division between the parties herein.
6. That I am aware that the plaintiff/respondent instituted this action by a writ of summons and statement of claim filed on the 22nd day of February, 1995, claiming the following reliefs:
(a) A declaration that the plaintiff is the rightful holder of the certificate of occupancy in respect of all that piece or parcel of land situate, lying and being at Maryland Crescent, Onigbongbo, Maryland, Lagos.
(b) The sum of N100,000 as general damages for trespass committed by the defendant, its servants and or agents on the said land covered by survey plan No. LA/332/93 dated 22nd day of December, 1993.
(c) An order of perpetual injunction restraining the defendant, its servants and or agents. or privies from further committing acts of trespass on the said land.
7. That on the 13th day of July, 1995, His Lordship, Adagun, J. (as he then was) entered judgment in favour of the plaintiff/respondent. Furthermore on the 3rd day of December, 1999 and the 17th day of November, 2001, His Lordship, Okuwobi, J. sitting at Court 16, Ikeja Judicial Division, delivered further rulings in favour of the plaintiff/respondent, dismissing the defendant/appellant’s motion.
8. That further to the foregoing paragraphs, the property, the subject of this suit, has been assigned to the interested party/applicant, by the plaintiff/respondent by virtue of a contract of sale as a consequence of which the interested party/applicant is now the beneficial owner of the property in issue and has duly started development on the property at Maryland Crescent, Onigbongbo, Maryland Estate Ikeja, Lagos.
9. That further to paragraph 8 above, I am informed by Mr. Olaseni Ashiru of counsel and I verily believe him that in view of the aforesaid transaction the interested party/applicant instructed his legal practitioners further to their professional advice, to file an application for joinder, as this would be the best means by which he could safeguard his interest in the case of any further litigation.
10. That as the current beneficial owner of the said property it is the interest of the interested party/applicant that will be directly affected by any order(s) of this honourable court, and it has therefore become necessary for the interested party/applicant to file an application for joinder.”
The defendant/respondent filed a counter-affidavit paragraphs 4 to 10 of the counter-affidavit read:
4. That the appellant has informed me and I believed that the family known and called Kuyasi-Awishe had no interest in the land in dispute and if they have sold the land in dispute to the respondent such sale must have been illegal.
5. That the appellant further informed me and I believed that the land in dispute was sold to it by Twinkle Development Company Ltd, by virtue of their deed of conveyance registered as No. 74 page 74 volume 1634 of the Land Registry, Ikeja. Lagos State.
6. That the appellant has informed me and I believed that the certificate of occupancy being relied upon by the respondent was obtained behind the appellant and its predecessor in title and so also the judgment of 13/7/ 95.
7. That paragraphs 5, 6 and 7 are true but at no time was the defendant/appellant served with any court paper before the lower court.
8. That the appellant informed me and I believed that the presence of the party interested was seen on the land in dispute in February, 2001 when he purportedly bought the land in dispute from the plaintiff/respondent.
9. That the solicitor to the appellant has informed me and I believed that the interested party has no legal or equitable right to protect in this case and if at all he has any same could as well be protected by the plaintiff/respondent.
10. That the essence of the application for joinder is to delay early prosecution of this case.”
A close reading of the affidavit in support of the application reveals that the applicant has not said anything concerning the date when he acquired his interest in the land in dispute. He has not exhibited the document by which his interest was acquired. It is however clear that he acquired the interest after the judgment of the lower court was given on 13/7/95. In the course of his argument applicant’s counsel stated that the applicant bought the land in year 2000. The judgment given by the lower court was not exhibited before us. Neither has the applicant shown his proposed grounds of appeal. I am therefore not able to see what aspect of the judgment the applicant wishes to appeal against and how that aspect impacts on the interest of the applicant.
Another procedural point worth making is that the judgment of the lower court having been given in 1995, the applicant requires the leave of this court to appeal out-of-time as an interested party.
No such prayer has been made to us in the application. Perhaps the most important reason why the application must fail is the fact that the appeal before this court is a continuation of the proceedings before the lower court. The doctrine of lis pendens therefore applies.
In Bamgboye v. Olusoga (1996) 4 NWLR (Pt. 444) 520 at 541, the Supreme Court discussed the nature of the doctrine of lis pendens thus:
“In Osagie v. Oyeyinka (1987) 3 NWLR (Pt.59) 144 this court had cause to consider the doctrine of lis pendens and its application in Nigeria. Oputa, JSC at pages 155-156 had this to say
“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. There was however a change, or slight modification of this doctrine brought about by the Judgments Act, 1939. By Section 7 of the act no lis pendens binds a purchaser or mortgagee without express notice thereof, unless a memorandum giving a declaration of the person whose estate is intended to be affected thereby, and particulars of the suit, is registered in the Land Registry as a land charge (see Land Charges Act, 1925, S. 3(1). One effect of such registration is to give intending purchasers or mortgagees notice of the litigation. By S. 2 (8) of the Land Charges Act of 1925 the registration ceases to have effect after five years unless renewed.
The question now is – Are we in Nigeria bound by the doctrine of lis pendens? If the answer is yes then a further question arises- Are we also bound by the provisions of s. 7 of the Judgments Act of 1839 ‘a statute of general application’ which will apply to us here in Nigeria? This court per Justice Idigbe, JSC answering the two questions posed above, in Ogundiani v. Araba & Barclays Bank of Nigeria Ltd. (1978) 6 – 7 SC 55 at p. 80 thus (as it relates to registration of a lis pendens):
‘At common law it was not compulsory to register a lis pendens. The statutes which later made registration of a lis pendens compulsory in England do not come within the definition (in the framework of our local laws) of ‘statutes of general application’ in any event, those statutes which require, in England, compulsory registration of a lis pendens have no force and effect in Nigeria … There is no local statutory provisions requiring a lis pendens to be registered’.
“As it relates to the doctrine itself this court at p. 78 of Ogundaini’s case (supra) stated categorically:
‘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.’
“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 so 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 the pendency of the action.” See also Ebueku v. Amola (1988) 1NSCC 582; (1988) 2 NWLR (Pt. 75) 128.
The conclusion I reach on the facts of this case is that exhibit 13 is void; it passed no title in the land in dispute to the defendant. She could, therefore, not rely on it in proof of her title.”
In view of the doctrine of lis pendens, the applicant could not have acquired any cognisable interest in the land in dispute to enable this court grant him the leave to appeal as an interested party. This application fails. It is dismissed with N2,000.00 costs to the respondent.
ADEREMI, J.C.A.: I have had the opportunity of reading, in advance the ruling of my learned brother, Oguntade, JCA. I entirely agree with him that the application is unmeritorious. The entire affidavit filed in support of the application does not disclose the interest of the interested party/applicant in the subject matter of this appeal. A party seeking an order of this nature is evoking the equitable jurisdiction of the court. It is therefore demanded of him to make a clean disclosure of all facts. There is nothing in his affidavit to show when he acquired interest in the subject-matter of the appeal.
None disclosure of vital facts militates against the grant of this application. For the above little contribution but most especially for the detailed reasons in the lead ruling I would also dismiss the application.
CHUKWUMA-ENEH, J.C.A.: I have had the advantage of reading before now the ruling just delivered by my learned brother Oguntade, JCA. I agree that the application in the circumstances must fail. I accordingly dismiss it with N2,000.00to the respondent.
Dele Awokoya For Appellant
Ayo Orebowale For Respondent