JOHN A. OSAGIE V. ALHAJI S.O. OYEYINKA & ANOR.(1987)

JOHN A. OSAGIE V. ALHAJI S.O. OYEYINKA & ANOR.

In The Supreme Court of Nigeria

On Friday, the 12th day of June, 1987

SC.194/1985

JUSTICES

ANDREWS OTUTU OBASEKI Justice of The Supreme Court of Nigeria

AUGUSTINE NNAMANI Justice of The Supreme Court of Nigeria

MUHAMMADU LAWAL UWAIS Justice of The Supreme Court of Nigeria

ADOPLHUS GODWIN KARIBI-WHYTE Justice of The Supreme Court of Nigeria

CHUKWUDIFU AKUNNE OPUTA Justice of The Supreme Court of Nigeria

Between

JOHN A. OSAGIE Appellant(s)

AND

ALHAJI S.O. OYEYINKA
2. ERASMUS OGBEIDE Respondent(s)

RATIO

THE DOCTRINE OF LIS PENDENS

Before considering the “Particulars of ” it may be necessary to prevent us falling into further error, to have a clear idea of the doctrine of lis pendens. 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 pendecy of that suit or action, even to a purchaser or mortgagee without notice. There was however a change, or slight medication of this doctrine brought about by the Judgments Act 1839. By Section 7 of that Act no lis pendens binds a purchaser or mortgagee without express notice thereof, unless a Memorandum giving a description 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). PER OPUTA, J.S.C.

WHETHER OR NOT NIGERIANS ARE BOUND BY THE DOCTRINE OF LIS PENDENS

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 Judgment Act of 1839″ a statute of general application” which will apply to us here in Nigeria This Court per Idigbe, J.S.C. answering the two questions posed above, in Ogundaini v. Araba & Barclays Bank of Nigeria Ltd. (1978) 6 & 7 S.C. 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 frame-work 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 provision 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”. PER OPUTA, J.S.C.

WHETHER OR NOT THE DOCTRINES IS PART OF THE NIGERIAN LAW

The doctrine of lis pendens is part of our law. See Ogundaini v Araba & Barclays Bank of Nigeria Ltd. (1978) 6 & 8 SC. 55 at 80. It 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. PER OPUTA, J.S.C.

OPUTA, J.S.C. (Delivering the Leading Judgment): In the Court of first instance the Plaintiff who is now the Appellant sued the Defendants/Respondents claiming in his Amended Writ of Summons:-
“(i) Declaration of Statutory Right of Occupancy of the premises situate at and known as No.12, 3rd Cemetery Road Benin City.
(ii) An Order setting aside the Conveyance (of part of the said premises) registered as Instrument No. 14 at page 14 in Volume 379 of Land Registry in the office at Benin from the 2nd Defendant
Erasmus Ihama Ogbeide to the 1st Defendant Alhaji S.O. Oyeyinka.
(iii) N5,000 damages for trespass.
(iv) Perpetual Injunction restraining the Defendants, their agents and anyone claiming through them from further trespassing on the said premises.”
Pleadings and plans were ordered filed and duly delivered. An Amended Statement of Claim was filed by the Plaintiff. The 1st Defendant also filed an Amended Statement of Defence while the 2nd Defendant filed his own Original Statement of Defence. The case was fought on these new Statement of Claim and Defence.
After due hearing the trial Court dismissed all the Claims against the 1st Defendant. With regard to the 2nd Defendant the trial Court held:-
“I must confess that I do not know the precise relief sought against the 2nd Defendant. …. ”
The learned trial Judge however ended up thus:-
“In sum, the reliefs sought by the Plaintiff against the defendants are hereby dismissed”.
It must therefore be noted in passing that the learned trial Judge could not meaningfully make any particular order against the 2nd Defendant as 2nd Defendant since “he did not know the precise relief sought against him”.
The Plaintiff lost in the trial Court. Dissatisfied and aggrieved he then appealed to the Court of Appeal Benin Division. That Court again dismissed the Plaintiff’s appeal with “costs assessed at N350.00 to the Respondent”. Further dissatisfied, the Plaintiff has finally appealed to the Supreme Court, the country’s Court of last resort. If the issues were mainly and solely issues of fact then the Plaintiff would have had to face the uphill task of battling against the concurrent findings of fact of two Courts and this Court’s known reluctance to interfere with such findings. Fortunately for the Plaintiffs the main factual props of this case are not in dispute. What has been called into question are the legal consequences of and from those facts.
The parties filed and relied on their Briefs of argument. According to the Respondents’ Brief “the main issue in this appeal is whether the Appellant can still insist on having the said premises situate at Cemetry Road Benin City from the 2nd Respondent”. That Brief then added – “The facts are clear”. What were those facts From the pleadings of the parties, the evidence led and the findings of the learned trial Judge the facts were as follows:-
1. The 2nd Defendant on the 10th April 1974 issued EX.D being a receipt for an amount of N3,600.00 paid to him by the Plaintiff. Exhibit D is designated” Purchase Consideration “.
2. The 2nd Defendant also on the 10th June 1974 issued EX.E for the sum of N3,000.00 and the Plaintiff later paid another N3,000.00 to the 2nd Defendant. Exhibit E is also designated “Purchase Consideration”.
These payments were not disputed by the 2nd Defendant. The only issue there, was the purpose for which the Plaintiff paid the 2nd Defendant all these sums of money totalling N9,600.00. The 2nd Defendant pleaded and testified that these sums represented a friendly loan he obtained from the Plaintiff. The Plaintiff on the other hand pleaded and testified that EX. D and EX.E were “Purchase Receipts” from the 2nd Defendant (undisputed owner thereof) for the sale to him of two plots of land marked A and B on EX. C. The finding of fact of the learned trial Judge on this central issue which as it were holds the key to the solution of the legal problems arising in this appeal is very crucial.
I will therefore reproduce some relevant portions of the judgment of the trial Court at p. 160 of the record of proceedings:-
“The evidence of the 2nd Defendant that he did not sell any land to the Plaintiff and that exhibits “D” and “E” are receipts for loans cannot be taken seriously …. There can therefore be no question that exhibits “D” and “E” are not receipts for a friendly loan. What then did the Plaintiff get from the 2nd Defendant as a result of transactions touching on a registered land’
The learned trial Judge answered the above question himself at p. 161 lines 2
to 4 thus:-
“On the authorities all that the plaintiff got by virtue of the receipts exhibits ”’D” and “E” was an equitable interest”.
To put the above in positive language devoid of all equivocations the trial Court found:-
(1) that the 2nd Defendant sold the two portions of land marked “A” and “B” on EX.C to the Plaintiff.
(2) that the 2nd Defendant wanted to, as clearly indicated in EXS. “D” and “E” but, could not, execute a legal conveyance to transfer the legal estate in the two plots of land he sold to the Plaintiff because there was an encumbrance on the property in the form of an equitable mortgage of the landed property to National Bank by the deposit of the 2nd Defendant’s title deed of the self same land with the Bank;
(3) that to expedite the transfer of the legal estate to him the Plaintiff made further payment this time to the Bank to enable it release the 2nd Defendant’s conveyance.
Let us pause here for a while and consider the legal consequences flowing directly from the above findings of fact. It is agreed on all sides that the Plaintiff at this point in time “certainly did not get a legal interest because no conveyance of the land was made to him” to use the ipsissima verba of the learned trial Judge. But that does not mean that he got nothing; that he had no rights at all in and over the two plots of land now in dispute. It must be conceded on all sides. (it was conceded at least by the learned trial Judge) that the Plaintiff got an equitable interest which could be enforced by an action for specific performance to compel the 2nd Defendant to execute a formal conveyance. There was such an action – Suit B/184/74 – and it was during the pendency of that action that the 2nd Defendant sold one portion of the land marked A in EX.C to the 1st Defendant. Before this sale and pending a formal conveyance to the Plaintiff, the 2nd Defendant was an implied trustee of the two plots of land described in EXS. D and E and marked” A” and “B” C in EX.C, for the Plaintiff/Beneficiary. Any improper dealing with any of those two plots of land would constitute a breach of that trust.
This is now the opportune moment to bring into the picture the prosecution of the 2nd Defendant by the Police in EX.T and to examine its impact on the two Defendants as well as the legal effect of that prosecution vis-a-vis the Plaintiff’s rights in and over the land in dispute. On the 27th June 1974 the 2nd Defendant paid off the Bank. All that was now needed was a letter or Instrument of Release and the return of his original Conveyance back to the 2nd Defendant. On the 1st July 1974 the Plaintiff paid into the account of the 2nd Defendant with the National Bank the balance of N3,000.00 and demanded from the Bank Manager the Conveyance covering the premises in EX.C deposited with the Bank by the 2nd Defendant. He was asked to exercise some patience. It was when his patience ran out that the Plaintiff suspecting that the 2nd Defendant and the Bank Manager were acting from improper and/or ulterior sinister motive reported to the Police. What was his report” According to EX. T. page 5 line 1 all that the Plaintiff complained of was “that they (the 2nd Defendant and the Bank Manager) have conspired to dupe me”. It is important to note that the Plaintiff did not report any case of stealing to the Police.
From the evidence of the Plaintiff in EX.T it was as clear as crystal that this was not a case of stealing. The Police should have referred the Plaintiff to the Civil Court and there to pursue any appropriate remedy. This was not a case of private prosecution where the prosecutor takes full responsibility for the arrest and prosecution of the accused. This not being a case of either “Malicious Prosecution” or of “false Imprisonment,” it is not necessary to go into the issue of who is a prosecutor or what is a prosecution; nor is it necessary to probe the fine distinction between ministerial and judicial proceedings for ministerial and judicial acts as elaborated in Brown v. Chapman (1848) 6 C.B 635 or Clubb v. Wimpey (1936) 1 All E.R. 69 & (1936)3 All. E.R. 148. See also “Ahmed Alhadi v Ibrahima Allie 1951) 13 W.A.C.A. 323 at p.324 and Payin v. Alurah (1953) 14 W.A.C.A. 267 at p.268. But it is necessary to probe the legal consequences of the prosecution of the 2nd Defendant on the present claim of the Plaintiff. Does EX.T constitute an estoppel against the plaintiff
In the Respondents’ Brief at page 3 learned counsel, Mr. Ebohon emphasized the obvious that “He who seeks equity must do equity” and then asked – “Is it equitable after the conviction and sentence of the late 2nd Respondent (See Exhibit T) for the Appellant to insist on having the said premises situate at Cemetery Road, Benin City’ Is the proper thing not for the Appellant to demand for the N9,600.00 (Nine thousand six hundred Naira) he paid The first hurdle to clear here is that the Plaintiff/Appellant did not make this prosecution (Ex.T) an issue either in his grounds of appeal or in his Brief. The Defendants/Respondents did not counter-appeal nor did they file an appropriate Notice under Order 8 Rule 3(2) of the Supreme Court Rules 1985 that the decision of the Court of Appeal should be affirmed on other grounds namely that in view of EX.T the Plaintiff/Appellant cannot now claim the reliefs he now seeks.
Since the greater part of Mr. Ebohon’s oral submission before us dealt with the prosecution of the 2nd Defendant in EX.T, it may be necessary to emphasise that much will depend on the case pleaded and proved at the trial. The 2nd Defendant pleaded a friendly loan of the N9.600.00 and denied that the N9,600.00 was for sale of his property at Cemetery Road, Benin City to the Appellant. The trial Judge’s reaction to that case was that the 2nd Defendant could tell that to the horse marines. He could not be taken seriously and the learned trial Judge did not take that case seriously either. He disbelieved the theory of loan. If there was a loan then the appropriate remedy will certainly be its refund. The trial Judge found there was a sale which in the absence of a legal conveyance gave the Plaintiff merely an equitable interest in the premises sold (EX.C). The 2nd Defendant could have brought a civil action against the Plaintiff for either false imprisonment or malicious prosecution if he wished to, but that is a very different thing from saying (as the 2nd Defendant is now saying) that the prosecution, EXT, dissolved and terminated all the rights of the Plaintiff over the premises in EX.C which he bought from the 2nd Defendant with a promise from the said 2nd Defendant:-
“I shall execute a formal conveyance in favour of the said J.A. Osagie when I shall have redeemed the Conveyance of my said piece or parcel of land from the bank (National Bank) to which it is currently mortgaged”. (see EXS.D & E).
This promise was in writing signed by the 2nd Defendant. I must conclude my discussion of the prosecution of the 2nd Defendant in EX.T by emphasizing that neither the Court of first instance nor the Court below based its decision in this case on EX.T. I will not base mine on it either.
Having disposed of EX.T. – the prosecution of the 2nd Defendant-one is now faced with the question:- What further plea can the 2nd Defendant now make to the Plaintiffs claims This question logically and naturally brings into focus the Appellant’s first ground of appeal viz:
“The Court of Appeal erred in law and/or misdirected itself in law and in fact by affirming the judgment of the learned trial Judge dismissing the Plaintiff’s claims in their entirety when it failed to resolve or determine the looming issue of the statutory right of occupancy or the- entitlement thereto as between the plaintiff and the 2nd defendant in respect of at least, parcel B of the property in dispute as indeed of the entire property comprised in exhibit C, and this, by failing to see that the applicability vel non of the doctrine of lis pendens as pertain to the plaintiffs claims against the 1st defendant and in respect of parcel A of Exhibit C had no bearing at all, on the claims relating to parcel B and also by glossing over the plaintiff’s complaint against the judgment of the learned trial Judge in ground 10 of the grounds of appeal in which the Court found in principle for the plaintiff”.
This is a marathon ground of appeal whose effect, could be easily lost in its verbosity. The Amended Writ of Summons at p.54 clearly showed that the Plaintiff’s quarrel was mainly with the 2nd Defendant who having sold the premises in dispute to him (the Plaintiff) in 1974 at a price of N9,600.00; in 1976 “fraudulently and purportedly sold and conveyed part of the said premises to the 1st defendant”. Also the claims in paragraph 39 of the Amended Statement of Claim at page 64 were made against both defendants. It was therefore the duty of the two Courts below first to discover and then to consider the case made by the Plaintiff against each defendant. The claims made by the Plaintiff against the Defendants were made “jointly and severally”. They had also to be considered jointly and severally.
The Court of first instance after considering the case made against the 1st Defendant and applying to that case the doctrine of lis pendens concluded at page 166 of the record (Lines 1-7):-
“The claim for an order setting aside the conveyance from the 2nd defendant to the 1st defendant is thereby dismissed. The plaintiff has not succeeded in establishing title to the land in dispute and the prayer for injunction against the 1st defendant and his agents is hereby dismissed”.
That was the trial Court’s decision as it relates to the case made against the 1st Defendant. What was the trial Court’s decision vis-a-vis the 2nd Defendant It is this – “I must confess that I do not know the precise relief sought against the 2nd Defendant”. If the case against the 2nd Defendant is known then it will be quite easy to relate that case to the reliefs claimed in paragraph 39 of the Amended Statement of Claim. The whole tenor of the Amended Statement of Claim is that the purported sale of parcel A of the land in dispute (Ex.C) from the 2nd Defendant to the 1st Defendant was fraudulent; that the subsequent conveyance to the 1st Defendant thus tainted with fraud should be cancelled; that in addition to the fraud against the interest of the Plaintiff (for whom the 2nd Defendant held the two plots of land in trust pending a formal conveyance) the 2nd Defendant also sold plot A in Ex.C to the 1st Defendant pendente lite – during the pendency of Suit B/l84/74; that as against the 2nd Defendant alone the Plaintiff as cestui que trust in respect of parcel B in EX.C was entitled to a formal conveyance of the legal title but with the inception of the Land Use Act No.6 of 1978 his entitlement will be limited to a statutory Right of Occupancy of parcel B in EX. C; that if the sale and conveyance of parcel A in Ex.C to the 1st Defendant is cancelled, the Plaintiff will also be entitled to a Statutory Right of Occupancy of parcel A in EX.C. This is the Plaintiff’s case against the 2nd defendants, a case which was, with the greatest respect, completely misunderstood by the two Courts below. The issue of lis pendens was not the crucial issue certainly not as it related to the case against the 2nd Defendant.
Part of the Plaintiff’s complaint against the judgment of the Court of Appeal Benin Division in this case in Ground 1 of his grounds of appeal was that the Court below “glossed over the plaintiff’s complaint against the judgment of the learned trial Judge in ground 10 of the grounds of appeal in which the Court found in principle for the Plaintiff”. Now this ground 10 was reproduced in the judgment of the Court below at p.239. The Particulars of Misdirection were not reproduced. Those Particulars are very important and they are:-
“Particulars of Misdirection (See p.231 of the record)
(i) The Learned trial Judge held at page 160 of the record of proceedings that 2nd Defendant did engage in a transaction of sale between himself and the Plaintiff as per Exhibits “D” and “E”.
(ii) Apart from this there is uncontrovertible evidence that the 2nd Defendant handed over the keys of the building in dispute to the Plaintiff and the Plaintiff was in fact put into possession and would have remained in possession thereof but for the intervention of the Court’s interim injunction.
(iii) Accordingly the combination of the sale/receipt plus being put into possession by the 2nd Defendant confers customary title on the Plaintiff wherein he exercised acts of ownership and possession on the parcel of land identified as plot B. In addition there is the evidence which is not controverted that Exhibit “F” is the approval application to the 2nd Defendant’s ward for land to the relevant plot approved by the Oba of Benin”.
How did the Court below deal with this ground of appeal in its judgment Ground 10 was only casually mentioned by the lower Court at p.239. It was not considered at all. What is important is the consideration of the ground not its mere mention.
There was, with the greatest respect, no earthly reason for the Court of Appeal to review the pleadings and the evidence in view of the findings of fact of the trial Court at p.160 that EXS.D and E were not loan receipts but receipts for the sale of land and the conclusion of law at p.161 “that all the plaintiff got by virtue of the receipts Exhibits D and E was an equitable interest”. There was no cross-appeal by the 2nd Defendant challenging the above findings. What the Court below should have then concentrated on would have been the legal effect of the above findings on the relationship of the Plaintiff and the 2nd Defendant. I devoted the earlier part of this Judgment on considering these legal effects because they will form the basis of any purposeful consideration of the issues in dispute in this case. For further emphasis, I will repeat that one of such effect or result is that pending the formal conveyance the 2nd Defendant held the land in dispute in trust for the Plaintiff who was now the beneficial owner. If one adds to this the uncontroverted evidence that the 2nd Defendant handed over the keys of the building on plot B in EX.C to the Plaintiff thus putting him into possession then the case of the Plaintiff against the 2nd Defendant becomes much stronger. There was also the handing over of EX.F from the 2nd Defendant to the Plaintiff. Everything to perfect the title of the Plaintiff was there except the formal conveyance which could not be validly made during the subsistence of the mortgage of the land in EX.C. to the National Bank. That mortgage had been discharged and redeemed. But instead of honouring his pledge in EXS.D and E “to execute a conveyance in favour of the said J.A. Osagie when I shall have redeemed the said conveyance from the National Bank” the 2nd Defendant denied selling any land to the Plaintiff (J.A. Osagie) and went forward to execute another conveyance, EX.B, in respect of plot A in EX.C in favour of the 1st Defendant. This was what the Court below should have considered. This is what it did not do. I entirely agree with learned counsel for the Plaintiff/Appellant in his criticism in Ground 1 that the Court below merely glossed over the main case the Plaintiff/Appellant had against the 2nd Defendant. Obsessed, as it were, with the doctrine of lis pendens as it applied to the 1st Defendant the two Courts below totally failed to give adequate consideration to the clear case made by the Plaintiff/Appellant against the 2nd Defendant/Respondent. Ground 1 of the Appellant’s Grounds of Appeal to this Court therefore succeeds.
Ground 2 of the Grounds of Appeal at page 270 of the record of proceedings complained that:-
“(2) The Court of Appeal erred in law in affirming the rejection by the learned trial Judge and for different reasons, the doctrine of lis pendens which applied to nullify exhibit B, the conveyance of a portion of the disputed property, parcel A, by the 2nd defendant to the 1st defendant.
Before considering the “Particulars of ” it may be necessary to prevent us falling into further error, to have a clear idea of the doctrine of lis pendens. 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 pendecy of that suit or action, even to a purchaser or mortgagee without notice. There was however a change, or slight medication of this doctrine brought about by the Judgments Act 1839. By Section 7 of that Act no lis pendens binds a purchaser or mortgagee without express notice thereof, unless a Memorandum giving a description 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 Charge 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 Judgment Act of 1839″ a statute of general application” which will apply to us here in Nigeria This Court per Idigbe, J.S.C. answering the two questions posed above, in Ogundaini v. Araba & Barclays Bank of Nigeria Ltd. (1978) 6 & 7 S.C. 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 frame-work 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 provision 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.
In this case, again with the greatest respect, both the Court of Appeal and the Court of first instance failed to grasp the import and the purport of the doctrine. Both went off the rail in a wild goose chase looking for proof of notice to the 1st Defendant. It was sufficient for the doctrine to apply to establish that there was a pending case, involving the property in dispute between the Plaintiff/Appellant and the 2nd Defendant/Respondent and that during the pendency of that suit the 2nd Defendant/Respondent transferred the property to the 1st Defendant/Respondent. The outcome of the suit thus becomes immaterial. The important thing is pendente lite nihil innovetur (Co: Litt 344). Lord Coke that great or rather one of the greatest exponents of the Common Law was also of that view “that nothing should be changed during the pendency of an action”. Thus a pendente lite purchaser buys at his own risk.
Let me now apply the above principles to the facts and surrounding circumstances of the case now on appeal. From paragraphs 21 and 23 of the Plaintiffs Amended Statement of Claim, it is clear:-
(i) that “on the 23rd October 1974 the plaintiff instituted an action in the Benin High Court against the 2nd Defendant praying for an order of specific performance” to compel him to convey the parcels of land marked A and B in EX.C to him the plaintiff pursuant to EXS.D and E (the purchase receipts);
(ii) that the Suit was no.B/184/74;
(iii) that judgment was given in that Suit on the 31st October 1977, that is to say – the action B/184/74 lasted from 23rd October 1974 to 31st October 1977.
This period was then the period of the pendency of the Suit. Any sale or transfer of any part of EX.C made during the period 23rd October 1974 to 31st October 1977 will be made pendente lite. In paragraph 26 of the Statement of Claim it was pleaded that in 1976 during the pendency of Suit No. B/184/74 the 2nd Defendant conveyed portions of the land in dispute in B/184/74 to the 1st Defendant. That Conveyance was tendered as EX.B which was executed on the 23rd June 1976 during the currency or pendency of Suit No.B/184/74. It is thus clear that EX.B was executed pendente lite and that the 1st Defendant was a pendente lite purchaser, buying at his own risk. The doctrine of lis pendens will thus automatically apply to nullify the conveyance to the 1st Defendant – (EX.B).
This case has even gone much more than the doctrine of lis pendens. With the surrounding circumstances of the 2nd Defendant denying the sale of the land in dispute per EXS.D and E; with him conveying part of the self same land in dispute to the 1st Defendant during the pendency of the Plaintiff’s action for specific performance, one can easily smell a rat or sense some fraudulent dealing. It is this feeling of being defrauded that moved the Plaintiff to report to the Police “that the 2nd Defendant and the Bank Manager were conspiring to dupe him”. This led to the prosecution of the 2nd Defendant in EX.T. Also if as was found by the trial Court there was a sale of the land in dispute to the Plaintiff, a sale which will have to be perfected by the 2nd Defendant executing a conveyance in favour of the Plaintiff, then before that conveyance was executed by the 2nd Defendant he (2nd Defendant) held the property in trust for the Plaintiff. The circumstances as I observed earlier on in this judgment created an implied trust. It will be highly fraudulent to sell part of such property held in trust to the detriment of the Plaintiff the cestui que trust. And in a fraudulent transaction justice demands that parties must be put, as far as possible on the basis existing before the transaction: see Ram Tuhuh Sing v. Biseswar Lall Sahoo (1875) L.R. 2 Ind. App.139; see also Bellamy v. Sabine (1847) S.C.5 L.J. Ch. (N.S) 36; 17 L.J. Ch. 105 41 E.R. 1007. Also by the Purchase Receipt EXS.D and E the 2nd Defendant obligated himself to “execute a formal Conveyance in favour of the said J .A. Osagie” – the Plaintiff. The maxim that Equity looks upon that as done which ought to be done applies here to compel the 2nd Defendant not to derogate from the sale but to complete same. In re Anstio Chetioynd v. Morgan (1882 A1751) Morgan v. Chetioynd (1882) A (19299 (1886) 31 L.R. Ch. D. 596. All these principles reinforce the doctrine of lis pendens and together they will all cry out against the Conveyance to the 1st Defendant EX.B.
Following the doctrine of lis pendens, purchase pendente lite though without actual notice and for valuable consideration can still be set aside but “in the case of a real purchase pendente lite the plaintiff is to be held to strict proof” of the pending Suit and such a plaintiff will not be allowed “to amend any flaws at the hearing”: Sorrel v: Carpenter (1728) 2 P. Wms 482; 22 E. R. 571. In this case the Plaintiff clearly pleaded Suit No. B/184/74 in paragraphs 21 and 23 (see p.60 of the record of proceedings) of his Amended Statement of Claim. These paragraphs were positively and unequivocally admitted in paragraph 11 of the 2nd Defendant’s Statement of Defence (see p. 74 of the record of proceedings). Even the 1st Defendant the purchaser pendente lite admitted the same paragraph 18 of his Amended Statement of Defence (p.88 of the record). He also at p.89 of the record of proeeedings admitted paragraphs 23 and 24 of the Plaintiff’s Amended Statement of Claim. This he did in his paragrapph 20. The 1st Defendant therefore admitted that he knew of the pendency of Suit No.B/184/74. He knew when it was started on 23rd October 1974 (as pleaded in paragraph 21 of the Statement of Claim); he knew when judgment in the said Suit was delivered on 31st October 1977. By looking at his Conveyance EX.B dated 23rd June 1976 it will not need a mathematical pundit to know that he bought part of the land in dispute during the pendency of Suit No. B/184/74. The fears expressed by Lord King. L.C in Sorrels’s case supra re the difficulty of knowing about the pendency of the Suit do not apply here. Knowing fully well that there was this pending Suit the 1st Defendant still went along with his purchase of the land involved in that litigation – his reason being (to quote paragraph 18 0f his Statement of Defence) that “the Plaintiff is estopped from praying any Court of law for an order for specific performance when the Plaintiff had prosecuted the said 2nd Defendant to conviction for stealing his (plaintiffs) N9,600.00 (Nine thousand, six hundred naira) representing the proceeds of an alleged sale of the premises known as No. 12, 3rd Cemetery Road, Benin City”. The 1st Defendant took a big gamble. It misfired and he lost. The trial Court found there was a sale inspite of EX.T the prosecution of the 2nd Defendant. In Sorrel’s case supra the Lord Chancellor emphasised that “if the purchase pendente lite be fraudulent, and to elude the justice of the Court, it ought to be highly discountenanced”. I hold that view of this purchase. The 1st Defendant was a complete stranger to the prosecution of the 2nd Defendant in EX.T. How does he then expect to derive any benefit from EX.T – another gamble I imagine! Ground 2 of the grounds of appeal therefore succeeds to nullify the Conveyance EX.B. Having held that the doctrine of lis pendens applied, I do not intend to probe the effect of the Court below affirming the trial Court’s decision that lis pendens did not apply but on other grounds. Both Courts for various and different reasons held that the doctrine did not apply in this case. Both Courts were wrong. That satisfies Ground 2.
The 3rd Ground is the omnibus ground dealing with the facts. I have earlier on at the beginning of this judgment considered the facts in great details up to the point of repetition. That should be enough treatment of Ground 3 which also succeeds.
In the final result the appeal succeeds. The judgment and consequential orders of the Court below as well as those of the trial Court are both, all set aside. In their place I make the following orders:-
(i) An Order of declaration in favour of the Plaintiff/Appellant of Statutory Right of Occupancy of the premises delienated and marked “A” and “B” in plan EX.C.
(ii) An Order ,citing aside the conveyance EX.B made by the 2nd Defendant/Respondent in favour of the 1st Defendant/Respondent.
(iii) N100.00 damages for trespass against the 1st Defendant/Respondent only.
(iv) An Order for perpetual injunction restraining the two, the Defendants/ Respondents, their agents and anyone claiming through them from further trespassing on the Plaintiff/ Appellant’s land shown in plan EX.C.
There will be costs to the Plaintiff/Appellant which I assess as follows:-
(i) N300.00 against both Defendants/Respondents in this Court.
(ii) N250.00 costs in the Court of Appeal.
(iii) N200.00 costs in the Court of first instance.

OBASEKI, J.S.C.: I have had the advantage of reading in advance the draft of the judgment just delivered by my learned brother, Oputa, J.S.C. I am of the same opinion on all the issues raised in this appeal and I agree that the appeal be allowed with the costs ordered by my learned brother.
The appellant instituted an action in the High Court of Justice Bendel State at Benin City claiming:
“(1) A declaration of statutory right of occupancy of the premises situate at and known as No. 12, 3rd Cemetery Road, Benin City:
(2) An order setting aside the conveyance (of part of the said premises) registered as instrument No 14 at page 14 in Volume 379 of the land Registry in the office at Benin City from the 2nd defendant, Erasmus Ihama Ogbeide to the 1st defendant S.O. Oyeyinka;
(3) N5000.00 damages for trespass;
(4) Perpetual injunction restraining the defendants, their agents and anyone claiming through them from further trespassing on the said premises.”
Pleadings and plans were filed and served on the order of the court. The appellant was unsuccessful at the trial and at the Court of Appeal and being dissatisfied with the dismissal of his action by both courts, he decided to bring the matter on appeal and filed his notice of appeal to this Court on several grounds.
The facts of the case are not in dispute and they have been set out in admirable detail by my learned brother, Oputa, J.S.C. Briefly they are as follows: The 2nd defendant/respondent sold the property in dispute to the plaintiff/appellant and received cash payment totalling N9,600.00 as “purchase consideration.” He however failed to convey the property to the plaintiff and gave many reasons for his inability to do so. Feeling that he had been swindled, the appellant reported the matter to the police. The Police carried out their investigation and ultimately prosecuted and convicted the 2nd defendant/appellant (now dead) for theft.
The purchase agreement and the receipts for the purchase money were all tendered at the trial. Despite these documents, the 2nd defendant/appellant refused to admit selling the property to the plaintiff/appellant at the trial. He said the amount was a friendly loan. Subsequently, he purported to sell the property to the 1st defendant/respondent and conveyed it to him.
The main issue for determination in this appeal is whether the 2nd appellant has lost his right to have the premises situate at Cemetery Road Benin City conveyed to him by the 2nd defendant/respondent who was convicted for stealing the N9,600 “purchase consideration.” The trial court found:
(1)that the 2nd defendant sold the two portions of land marked ‘A’ and ‘B’ on Exhibit ‘C’ (plan) to the plaintiff;
(2) that the 2nd defendant wanted to, as clearly indicated in Exhibit ‘D’ and Exhibit ‘E’ but, could not, execute a legal estate in the two plots of land he sold to the plaintiff because there was an encumbrance on the property in the form of an equitable mortgage of the landed property to the National Bank by the deposit of the 2nd defendant’s title deed of the self same land with the Bank;
(3) that to expedite the transfer of the legal estate to him, the plaintiff made further payment this time to the Bank to enable it release the 2nd defendant’s conveyance.
By suit No. B/184/74, the appellant instituted an action for specific performance against the 2nd defendant to compel him by order of court to execute conveyance of the legal estate in the property to him. While this suit was pending, the 2nd defendant/respondent purported to sell the portion marked ‘A’ in Exhibit ‘C’ to the 1st defendant. By the operation of the doctrine of lis pendens the sale was void.
Dr Enemeri who appeared as learned counsel for the appellant stoutly maintained that at no time did his client lodge a complaint of theft against the 2nd defendant/respondent. He could not in view of Exhibit ‘E’ receipts for “purchase consideration” for the premises.
But Mr. Ebohon, learned counsel for the 2nd defendant/respondent referred to the conviction and sentence for theft, of N9,600.00 as facts estopping the appellant from denying that the 2nd defendant/respondent was convicted for stealing the N9,600.00 from the appellant.
It is unfortunate that the 2nd defendant/respondent felt satisfied with the conviction for stealing the N9,600 and failed to file notice of appeal against the judgment. There is no doubt that from the facts on record in Exhibit ‘T’, he would have secured an acquittal and discharge from the High Court in its appellate jurisdiction. The failure to take advantage of his constitutional right of appeal cannot deprive the appellant of his contractual rights. Moreover one thing stands out clearly and that is that the conviction was not the act of the plaintiff/appellant. We are here concerned with an examination of a contract of sale of land. The issue is this: Was there a sale of land to the appellant by the 2nd defendant/respondent or not The fact found by the trial court, i.e. High Court is that there was a sale and that the purchase money was paid. The 2nd defendant/respondent did not deny receiving the N9,600.00 from the appellant.
In his testimony in chief he said:
“In 1974, the National Bank threatened to sell my property, I met the plaintiff as a friend and asked him for a loan to the tune of N9,600.00 (Nine thousand six hundred NAIRA). He gave me the loan in three instalments. We prepared two receipts for the loan. I signed the receipts. Exhibits ‘D’ and ‘E’ just shown to me are the receipts in question. Exhibit ‘D’ reads:
Purchase Consideration
I, Erasmus Ogbeide of No. 12, 3rd Cemetery Road, Benin (formerly NO.7 Oguola Street, Benin City) hereby receive from J.A. Osagie of No 29 Ezabayo Street, Benin City the sum of N3,600.00 in Standard Bank Cheque No BB/ 1 505165 being full consideration for the transfer to the said J .A. Osagie of 50 feet by 100 feet out of my piece or parcel of land 100 feet by 100 feet situate at No 12, 3rd Cemetery Road, Benin City. My said piece or parcel of land is demarcated by Town Planning beacons numbers 33,56,127 and 1326 and was approved for me by the Oba of Benin on 29th day of July, 1964 (vide my application dated 27th April, 1964).
The 50 by 100 hereby transferred to the said J.A. Osagie is that part of the said piece or parcel of land on which is erected an uncompleted building.
I shall execute a formal conveyance in favour of the said J.A. Osagie when I shall have redeemed the conveyance of my said piece or parcel of land from the bank (National Rank to which it is currently mortgaged)
Dated at Benin City this 10th day of April, 1974
Signed Erasmus Ogheide
Signed J.O. Ogunmola
witness
………………………

Signed M.E. Iyanru
witness
………………………
There can be no gainsaying the fact that Exhibit D refers to a sale of land not to a friendly loan. I now go to Exhibit E. It reads: “I Erasmus Ihama Ogbeide of No. 12, 3rd Cemetery Road, Benin City (formerly of No 7 Oguola Street, Benin City) hereby received from J .A. Osagie of No 29 Ezahayo Street. Renin City the sum of N3,000 (three thousand NAIRA) being half payment out of the agreed purchase price of N6,000.00 (Six thousand NAIRA) for that part of my premises at No 12, 3rd Cemetry Road, Benin City on which there is a completed bungalow. The said part occupies an area of about 50 feet by 100 feet out of the total area of 100 feet by 100 feet.
The other half containing an uncompleted building has already been sold to the said Mr J.A. Osagie.
This now means that the whole premises of about 100 feet by 100 feet containing one completed building and an uncompleted building now belong to J .A. Osagie.
The total area of the said premises is 954.48 square yards and so demarcated by beacon numbers MA 7492, 7489, 7490 and 7491 which area is delineated in pink on plan No. OM2832.
The balance of N3,000 (three thousand NAIRA) shall be paid to me by the said J .A. Osagie when I hand over to him the conveyance in respect of the said premises which conveyance is presently with the National Bank.
I shall execute a formal conveyance of the said premises in favour of the said J .A. Osagie when I shall have redeemed the said conveyance from the National Bank.
Apart from the mortgage to the National Bank, the premises are completely free from encumbrances. Dated at Benin City this 10th day of June. 1974.
Signed Erasmus Ihama Ogbeide
10/6/74
Signature of Witness Sgd
Full Name: Paul Abiodun Ogbaro
……………………..
……………………..
Sgd. G. Omuekwu”
……………………..
With these two documents Exhibits D and E. the case the appellant has made against the respondent is formidable and I cannot see any legal except route from defeat for the respondents. The learned trial judge correctly found that “on the authorities all that the plaintiff got by virtue of the receipts Exhibits D and E was an equitable interest.” Furthermore, the evidence shows that 2nd respondent executed Exhibit H, Power of Attorney in favour of the appellant to enable him collect the Title Deeds deposited with the Bank of payment of N3,000.00 balance into his account. He did pay this amount into the account of the 2nd defendant but the Title Deeds were not released to him.
I think the most devastating evidence to the case of the respondent is that the 2nd respondent handed over the keys of the premises to him and put him in possession. Payment of purchase price coupled with delivery of possession can oust any subsequent conveyance of the legal estate to any subsequent purchaser. A diligent purchaser will certainly find out that there is someone in possession and be served with notice of his interest.
I agree with the submission of appellant’s counsel that the court below glossed over the main case of the plaintiff/appellant.
The doctrine of lis pendens is part of our law. See Ogundaini v Araba & Barclays Bank of Nigeria Ltd. (1978) 6 & 8 SC. 55 at 80. It 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. Any purchaser whether he has notice actual or constructive or not is bound by the doctrine and buys nothing from a litigant vendor. The 2nd respondent was a party to suit No. B/184/74 instituted in respect of the property now in dispute. He was barred by the doctrine of lis pendens from selling and conveying the property or any part thereof at the time he sold to 1st respondent. The 1st respondent therefore got nothing and the conveyance executed in his favour was null and void and conveyed nothing. The evidence shows that the suit was not determined till 31st October, 1977. It was pending from,23rd October, 1974 to 31st October 1977 and the 23rd day of June 1976 the date the 2nd respondent purported to have executed the conveyance Exhibit B in favour of 1st respondent fell within that period.
The behaviour of the 2nd respondent left much to be desired. Knowing full well that he has sold the property to the appellant and received payment in full with an agreement to convey and a pending action for a specific performance, he proceeded to sell and convey what he no longer owns to the 1st respondent. Fortunately, for the appellant, his property rights are protected from the withering effect of the fraud. It is only the 1st respondent that is left defenceless against the fraud as he must in law lose the property bought with the money surrendered to the fraudulent vendor. He can however get back his money from the vendor.
For the above reasons and the lucid reasons set out in the judgment of my learned brother, Oputa, J.S.C. I will and hereby allow the appeal. The decision of the High Court and the Court of Appeal together with the order as to costs are hereby set aside and in their stead, I enter judgment for plaintiff. I hereby grant:
(1) a declaration that the plaintiff/appellant is entitled to a statutory right of occupancy in respect of the premises delineated and marked ‘A’ and ‘B’ in plan Exhibit ‘C’
(2) An order setting aside the conveyance Exhibit ‘B’ executed by the 2nd defendant/respondent in favour of the 1st defendant/respondent;
(3) N100.00 (one hundred NAIRA) damages for trespass against 1st defendant/respondent only;
(4) An order of perpetual injunction restraining the 1st and 2nd defendants/respondents, their agents and anyone claiming through them from further trespassing on the plaintiff/appellants’ land shown in plan Exhibit ‘C’.
I hereby order that the respondents do pay appellants costs as ordered by my learned brother, Oputa, J.S.C.

NNAMANI, J.S.C.: I had a preview of the judgment just delivered by my learned brother OPUT A, J.S.C, and I entirely agree with his reasoning and conclusions.
This appeal raised a number of issues. Before considering them, it is pertinent to observe that there were here concurrent judgments of the High Court and the Court of Appeal. It would have looked on the surface as if the appellant had a slim chance, but there were clearly substantial points of law in his favour. If of course what we had were concurrent findings of facts of the two courts, the situation would have been different for the appellant would have been contending with our Order 2, Rule 32 Supreme Court Rules 1985, as well as numerous decisions of this Court.
As it is, the facts are not really in dispute and I gratefully adopt them as set down in the lead judgment. I shall only refer to them where necessary in this concurring judgment. In his brief of argument learned counsel to the appellant, Dr. S.S.G. Enemeri, set down the matters for determination as including-
1) Whether the Court of Appeal was right in upholding the rejection but for different reasons of the applicability of the doctrine of lis pendens to nullify Exhibit B and not found for the plaintiff on that part of his claim pertaining to the 1st defendant and parcel A of Exhibit C”
It seems fairly obvious to me that it was essential to resolve the legal relationship between the Plaintiff/Appellant and the 2nd defendant in order to properly resolve the issues in this appeal. This is what the two lower courts, with all respect, failed to do. It is not in dispute that the 2nd Defendant/Respondent had title to a parcel of land shown in Plan Exhibit C, and divided into two parcels, A and B; that in Exhibits D and E he received the sums of N3,600.00 and N3,000 from the Appellant towards purchase of those parcels of land and that a further sum of N3,000.00 was paid by the Appellant to the 2nd Respondent’s bankers, the National Bank of Nigeria, to redeem the 2nd Respondent’s title deeds to the land here in dispute deposited with the Bank to cover some indebtedness. It is pertinent to mention that in Exhibits D and E headed “Purchase Consideration”, the 2nd Respondent pledged, “I shall execute a formal conveyance in favour of the said J.A. Osagie when I shall have redeemed the conveyance of my said piece or parcel of land from the Bank (National Bank) to which it is currently mortgaged.” The 2nd Respondent in addition to these receipts gave the appellant Exhibit K. an approval in respect of this same land which he got from the OBA of Benin. He also put appellant in possession of the premises in parcel B. It does seem to me unarguable and trite that on this the appellant had equitable interest to the property, pending the conveyance to him of the legal estate, such as would preclude the alienation of the property to a third party. Four important things happened. Firstly, when the property was redeemed from the National Bank the 2nd Respondent sold parcel B thereof on 23/6/76 to the 1st Respondent as per exhibit B instead of conveying the whole land to the appellant. Secondly, prior to this he had been telling the appellant to exercise patience, and of course when appellant’s patience ran out and he reported to the Police that he had been duped by the 2nd Respondent and the Bank Manager, 2nd Respondent was prosecuted as per Exhibit T. Thirdly, when the dispute started, the 2nd Respondent claimed that the receipts, Exhibits D and E, were for loans he took from the appellant and not for any sale of land to the appellant. The learned trial Judge rejected this and found that they were for sale of land in Exhibit C to the appellant. This crucial finding was neither challenged nor upset by the Court of Appeal. Fourthly, when the appellant had felt cheated after he paid N3,000.00 to the National Bank to redeem 2nd respondent’s title deeds and still no conveyance was made in his favour, he on 23rd October, 1974 instituted a Suit against the 2nd Respondent for specific performance. That suit was not concluded until 31/10/77.
I cannot see how in the circumstances of this case it would not be fraud on the appellant to convey any part of this property to a third party. The 2nd Respondent in my view could not have dealt with this property in any other lawful way except the conveyance to the appellant which he had undertaken to execute in Exhibits D and E. As for the purchase of Parcel B by the 1st Respondent, he obviously made an unfortunate gamble and set up a defence which was not available to anyone let alone to him. The doctrine of lis pendens clearly applied and since the sale was pendente lite the conveyance he purportedly obtained in respect of Parcel B i.e. Exhibit B is void against the appellant. It was contended by both courts that the 1st respondent had no notice of the pendency of the Suit No. B/184/74. I agree with Dr Enemeri that this was never an issue between the parties having regard to the pleadings in paragraphs 21 and 22 of the Amended Statement of Claim which were admitted in paragraphs 18 and 20 of the 1st Respondent’s Statement of Defence. Both the High Court and the Court of Appeal were in error in holding that the doctrine of lis pendens was not applicable in this Suit. Learned Counsel for the Respondents, Mr Ebobon argued strenuously that once the appellant had reported a case of stealing against the 2nd Respondent, the sale of land had been vitiated. All the appellant was entitled to, he said was a refund of his N9,600. I do not myself see why the prosecution of the 2nd Respondent by the Police could deprive the appellant of his rights in the transaction between him and the 2nd Respondent. Moreover, a close perusal of Exhibit T shows that both to the Police and in evidence in the trial, the appellant never complained about stealing. He cannot be penalised for whatever way the Police chose to record his complaint.
I would also allow the appeal and set aside the judgments of the High Court and the Court of Appeal. In their place, I endorse all the orders made by Oputa, J.S.C.

UWAIS, J.S.C.: I have had a preview of the judgment read by my learned brother Oputa, J.S.C. I entirely agree with the judgment. The doctrine of lis pendens applies to the transaction between the 1st and 2nd respondents since there was a suit pending when the sale of the part of the land in dispute by the 2nd respondent to the 1st respondent, took place. The sale did not therefore give the 1st respondent a legal estate in the piece of land which he purchased – Ogundaini v. Araba & Anor., (1978) 6& 7 S.C. 55 at pp. 78- 81.
It is very clear that there was a perfect sale of the land in dispute to the appellant by the 2nd respondent. The former had done all that was possible, including the redemption of the mortgage of the land made by the former to the National Bank, in order to enable the 2nd respondent execute a conveyance in favour of the appellant.
For the reasons given in the judgment of my learned brother Oputa, J.S.C, I too will allow the appeal and set-aside the decisions of the High Court and the Court of Appeal. I endorse the orders contained in the said judgment.

KARIBI-WHYTE, J.S.C.: I have had the preview of the judgment of my learned brother Oputa, J.S.C. in this appeal. I agree entirely with the reasoning and conclusions therein and I agree that this appeal be allowed and is hereby allowed.
Respondent shall pay costs to the Appellant as assessed by my learned brother Oputa, J.S.C.

Appeal Allowed

Appearances

Dr. S.S.G. Enemeri; (with him I.I. Erhabor). For Appellant

AND

Mr. E.O. Ebohon; (with him E.O. Sofunde) For Respondent