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OHAEGBU & ORS v. REGD TRUSTEES OF THE CAPUCHIN FRIARS MINOR NIGERIA (2022)

OHAEGBU & ORS v. REGD TRUSTEES OF THE CAPUCHIN FRIARS MINOR NIGERIA

(2022)LCN/5071(SC)

In The Supreme Court

On Friday, February 04, 2022

SC.700/2015

Before Our Lordships:

Olukayode Ariwoola Justice of the Supreme Court of Nigeria

John Inyang Okoro Justice of the Supreme Court of Nigeria

Amina Adamu Augie Justice of the Supreme Court of Nigeria

Uwani Musa Abba Aji Justice of the Supreme Court of Nigeria

Abdu Aboki Justice of the Supreme Court of Nigeria

Between

1. FIDELIS OHAEGBU 2. LAZARUS OKOYE 3. FIDES INDUSTRIES (NIG) LTD APPELANT(S)

And

THE REGISTERED TRUSTEES OF THE CAPUCHIN FRIARS MINOR NIGERIA RESPONDENT(S)

 

RATIO:

THE DISTINCTION BETWEEN GROUND OF LAW AND GROUND OF LAW AND FACT

The fact that a ground of appeal is christened “error in law” does not make it a ground of law. Having critiqued the Appellants’ 3 grounds of appeal, I am of the informed view that ground 2 is a ground of mixed law and fact. In SHANU V. AFRIBANK (2000) 13 NWLR (PT. 684) 392, it was held that what is required in distinguishing a ground of law and mixed law and fact is to examine thoroughly the grounds of appeal in the case concerned to see whether the grounds reveal a misunderstanding by the lower tribunal of the law or a misapplication of the law to the facts already proved or admitted, in which case, it would be question of law, or one that would require questioning the evaluation of facts by the lower tribunal before the application of the law, in which case it would amount to question of mixed law and fact. PER UWANI MUSA ABBA AJI, J.S.C.

THE DOCTRINE OF LIS PENDENS

In lis pendens, the law does not allow litigant parties or give to them during the currency of the litigation involving any property, rights in such property in dispute so as to prejudice any of the litigating parties. For it would be plainly impossible that any action or suit could be brought to a successful termination if alienation pendente lite were allowed to prevail. See Per KATSINA-ALU, JSC, in OLORI MOTOR COMPANY LTD. & ORS V. UNION BANK OF NIGERIA PLC (2006) LPELR-2589(SC) (PP. 22 PARAS. C). The sole purpose of lis pendens is to ensure that the jurisdiction of the Court, in disputes, is not rendered ineffectual through the destruction or transfer from person to person of the property subject to litigation. See Per OGUNTADE, JSC, in OLORI MOTOR COMPANY LTD. & ORS V. UNION BANK OF NIGERIA PLC (SUPRA) (PP. 44-45 PARAS. F). I make bold to state therefore that lis pendens is unavailable to the Appellants in this case since title to the landin dispute was acquired about five to six years before the present suit ensued.  PER UWANI MUSA ABBA AJI, J.S.C.

CONDITIONS FOR THE APPLICATION OF THE DOCTRINE OF LIS PENDENS
Lis pendens means “a pending legal action”, and the principle behind the doctrine is that the subject matter of a Suit should not be transferred to a third party during the pendency of the Suit – see Bua V. Dauda (2003) 13 NWLR (Pt. 838) 657, where this Court listed conditions that must be shown, for the doctrine to apply:
(a) That at the time of the sale of the property, the Suit regarding the dispute about the said property was already pending.
(b) That the action was in respect of real property; it never applies to personal property.
(c) That the object of the action was to recover or assert title to a specific real property; that is to say, an action in a subject matter adverse to the owner in respect of some substantive right,which is proprietary in nature; and
(d) That the other party had been served with the originating process in the pending action.

UWANI MUSA ABBA AJI, J.S.C. (Delivering the Leading Judgment): The Respondent/Plaintiff acquired the land in dispute from the Registered Trustees of the Roman Catholic Mission of Onitsha Archdiocese by a Deed of Assignment dated 24/5/1997. The Respondent’s grantor acquired their interest over the land in 1975 from Nkwelle Ezunaka community and in 1983 had it surveyed and placed survey beacons EA38869 and EA388875 thereon. Subsequent to the survey, the Respondent’s grantor (Nkwelle Ezunaka community) on 21/2/1985 executed a memorandum of confirmation of grant of land under native law with the other grantor (the Registered Trustees of the Roman Catholic Mission of Onitsha Archdiocese). Thus, the earlier grant of 1975 was confirmed in writing. The Appellants however counter-claimed that the land in dispute originally belonged to Oze community. Judgment was given in favour of the Respondent by the trial Court and affirmed by the lower Court, hence this appeal by the Appellants.

PRELIMINARY OBJECTION:
​There is however a preliminary objection for the dismissal of this appeal filed by the Respondent on the grounds that the Appellants did not obtain the requisite leave required to initiate this appeal contrary to Section 233(3) of the 1999 Constitution (as amended).

The Respondent’s objection is that none of the three grounds in the notice of appeal filed by the Appellants is a ground of law to enable the Appellants appeal as of Law. Thus, that the leave of this Court is needed for same to be entertained. Furthermore, he submitted that by Order 2 Rule 32 of the Supreme Court Rules, 1999 (as amended), leave to appeal concurrent findings shall be granted only in exceptional circumstances, which are not present in this appeal. He urged this appeal to be dismissed.

The Appellants’ learned counsel responded that an appeal that seeks the interpretation of Section 128(1) of the Evidence Act is certainly not an appeal on ground of fact. Similarly, that this appeal querying the failure of the lower Court to apply the principle of nemo dat quod non habet is not an issue of fact. Thus, that a ground of appeal that complains of misunderstanding by the lower Court of the law to the facts already proved or admitted is a ground of law. He relied on UMANAH V. NDIC (2016) LPELR-42556(SC). He prayed this Court to dismiss the preliminary objection.

The Appellants 3 grounds of appeal were stated thus:
1. Ground one: Error in Law: The learned Justices of the Court of Appeal erred in law when after stating the correct principle of law on issue of possession and ownership of disputed land, failed to apply it in the present suit and in so doing, arrived at a wrong decision which occasioned injustice.
2. Ground Two: Error in Law: The learned Justices of the Court of Appeal erred in law when they expected the Appellants’ witnesses to give oral evidence as to the content of a document (Judgment) already admitted in evidence as Exhibit D2 by the trial Court.
3. Ground Three: Misdirection in Law: The learned Justices of the Court of Appeal misdirected themselves in law when after concurring with the trial Court that the doctrine of lis pendens is not available to the Appellants, they failed to consider the doctrine of nemo dat quod non habet in view of the apparent content of Exhibit D2.

The fact that a ground of appeal is christened “error in law” does not make it a ground of law. Having critiqued the Appellants’ 3 grounds of appeal, I am of the informed view that ground 2 is a ground of mixed law and fact. In SHANU V. AFRIBANK (2000) 13 NWLR (PT. 684) 392, it was held that what is required in distinguishing a ground of law and mixed law and fact is to examine thoroughly the grounds of appeal in the case concerned to see whether the grounds reveal a misunderstanding by the lower tribunal of the law or a misapplication of the law to the facts already proved or admitted, in which case, it would be question of law, or one that would require questioning the evaluation of facts by the lower tribunal before the application of the law, in which case it would amount to question of mixed law and fact.
In the present appeal, the Respondent’s Counsel questioned the oral evidence of the Appellants’ witnesses to the content of Exhibit D2 (a document/Judgment) already admitted in evidence by the trial Court. This is obviously an evidence or fact disputed by both the Appellants and the Respondent on the admissibility of Exhibit D2. Thus, it is a ground of mixed law and fact. I therefore borrow a leaf from the simplified distinction drawn by my learned brother between a ground of law and that of mixed law and fact. When the facts are disputed as between the parties, the conclusions which follow from the application of the law to such disputed facts are characterized as those of mixed law and facts. Hence, grounds of appeal challenging such conclusions are grounds of mixed law and fact. Where the error of law is founded on disputed facts calling into question the correctness of the facts determined, it is invariably a question of mixed law and fact. This is in this latter case; it is a conclusion of law coupled with the exercise of discretion. See Per CHIMA CENTUS NWEZE, JSC, in ROYAL HOMES LIMITED & ANOR V. ECONOMIC AND FINANCIAL CRIMES COMMISSION & ANOR (2021) LPELR-53382(SC) (PP. 10-11, PARA. C-C).

I accept the Appellants’ submission on grounds 1 and 3 to be grounds of law. Nevertheless, because the Respondent came by way of preliminary objection and not by motion, I cannot grind or abate this appeal on one point since grounds 1 and 3 are standing tall as grounds of law. Thus, the preliminary objection is refused and hereby fails. I shall give listening ears to the appeal of the Appellants in the interest of justice and fair hearing.

MAIN APPEAL:
The Appellants featured two issues for determination thus:
1. Whether the Court of Appeal correctly interpreted Exhibit D2 (Judgment in Suit No. O/197/ 80) vis-a-vis the provisions of Section 128(1) of the Evidence Act.
2. Whether the Court of Appeal was right in failing to apply the doctrine of nemo datquod non habet against the Respondent’s title in view of the contents of Exhibit D2 (Judgment in Suit No. O/197/80) after concurring that the doctrine of lis pendens is not available to the Appellants.

The Respondent distilled two issues thus:
1. What is the evidential value of Exhibit D2 vis-a-vis the provisions of Section 128(1) of the Evidence Act, 2011 (as amended) and whether it supports the case of the Appellants.
2. Whether the Court of Appeal was right in holding that the doctrine of lis pendens is not available to the Appellants.
I shall consider the Appellants’ two issues together.

The submission of the learned Counsel to the Appellants is that by Exhibit D2 (the judgment of lyizoba J.); Nkwelle Ezunaka community does not have authority over the Oyolu Oze land but only Oze community and Isima family of Okoligbo family, Umudei village, Onitsha, shall administer, enjoy, dispose and/or appropriate Oyolu Oze land. That the judgment having not been set aside, binds the parties. He relied on ROSSEK V. ACB LTD (1993) NWLR (PT.312) AT 434. He argued that since Exhibit D2 dealt with part of the land in dispute, it was wrong for the lower Court to demand viva voce evidence on the content of Exhibit D2. He placed reliance on BONGO V. GOV. ADAMAWA STATE (2013) 11 NWLR (PT.1339) AT 444. He accordingly urged that a valid root of title can only be derived from members of Oze community and Isima family of Okoligbo family, Umudei village, Onitsha. His submission therefore is that since by Exhibit D2, the Respondent’s predecessors-in-title have no valid title to transfer to the Respondent in line with the doctrine of nemo dat quod non habet, the sale to the Respondent is null ab initio and the doctrine of lis pendens favours the Appellants. He urged this Court to allow the appeal and set aside the judgment of the Court of Appeal.

​The Respondent’s learned Counsel submitted contrariwise that Exhibit D2 is not a judgment between the parties herein, different from Oyolu layout and only in respect of Izizue layout. Hence, no nexus between the land in dispute in Exhibit D2 and the land in dispute presently. Moreover, that the Suit in Exhibit D2 was instituted 5 or 6 years after the Plaintiff/Respondent has acquired the land in dispute. He further submitted that Exhibit D2 speaks for itself and no extrinsic evidence will be allowed on it. That despite the fact that Exhibit D2 is created to be enjoyed and disposed of in common between the Oze people and the Isima family of Okoligbo family in Umudei village, Onitsha, in equal shares; Oyolu Oze land does not belong to the Appellants. He argued that the Appellants neither pleaded nor proved the four conditions for lis pendens to avail them. He finally submitted that the concurrent findings of the lower and trial Courts demonstrated that they are wholly supported by evidence and not perverse to be disturbed by this Honourable Court. He prayed that the appeal be dismissed in its entirety.

Could the trial and lower Courts have entertained the present appeal while Suit No. O/197/80 was pending or in the subsistence of Exhibit D2? I completely have not seen any of such elements. Exhibit D2 is the judgment of lyizoba J. of the High Court of Anambra State, Onitsha Division, tendered by DW1. The judgment concerns Suit No: 0/197/80 between FELIX ONWUEMELIE & 3 ORS V. HENRY UDEAGWU & 2 ORS in respect of ISIZUE layout, a land entirely different from OYOLU layout, in which the land in dispute is situated. Suit No: 0/197/80 wherein Exhibit D2 emanated from was filed in 1980 but its grant was made in 1975 though confirmed in 1985.

On the inapplicability of the doctrine of lis pendens to the Appellants’ case, the lower Court at page 613 held that “the Appellants so heavily relied on Exhibit D2 as more of a talisman in defence to the Respondent’s claim and also in proof of their counter-claim, hinged on the principle of lis pendens… is unassailable.” Furthermore, the lower Court at page 616 of the record hammered it that “Suit No. 0/197/80; that the same was instituted on 15th August, 1980, whereas, the grant made to the Respondent’s predecessor-in-title, The Roman Catholic Mission, Archdiocese of Onitsha by the Nkwelle Ezunaka community was in 1975. That is some five to six years before the action in Exhibit D2 was filed. In the circumstances, I find that the conclusion by the learned trial Judge that the doctrine of lis pendens, is not available to the Appellants, is unassailable.”

In lis pendens, the law does not allow litigant parties or give to them during the currency of the litigation involving any property, rights in such property in dispute so as to prejudice any of the litigating parties. For it would be plainly impossible that any action or suit could be brought to a successful termination if alienation pendente lite were allowed to prevail. See Per KATSINA-ALU, JSC, in OLORI MOTOR COMPANY LTD. & ORS V. UNION BANK OF NIGERIA PLC (2006) LPELR-2589(SC) (PP. 22 PARAS. C). The sole purpose of lis pendens is to ensure that the jurisdiction of the Court, in disputes, is not rendered ineffectual through the destruction or transfer from person to person of the property subject to litigation. See Per OGUNTADE, JSC, in OLORI MOTOR COMPANY LTD. & ORS V. UNION BANK OF NIGERIA PLC (SUPRA) (PP. 44-45 PARAS. F). I make bold to state therefore that lis pendens is unavailable to the Appellants in this case since title to the land in dispute was acquired about five to six years before the present suit ensued.

Another crux of the Appellants is on the evidential value of Exhibit D2 to their case. The said Exhibit is the alleged subsisting judgment of lyizoba J., wherein it was held that Nkwelle Ezunaka community does not have authority over the Oyolu Oze land but only Oze community and Isima family of Okoligbo family, Umudei village, Onitsha, shall administer, enjoy, dispose and/or appropriate Oyolu Oze land. On the proper or correct interpretation of Exhibit D2 (Judgment in Suit No. O/197/80) vis-a-vis the provisions of Section 128(1) of the Evidence Act, the section provides:
(1) When a judgment of a Court or any other judicial or official proceeding, contract or any grant or other disposition of property has been reduced to the form of a document or series of documents, no evidence may be given of such judgment or proceeding or of the terms of such contract, grant or disposition of property except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under this Act; nor may the contents of any such document be contradicted, altered, added to or varied by oral evidence.

The lower Court considered variously the evidential value of Exhibit D2 thus:
Let us now consider Exhibit D2, which was heavily relied upon by the appellants. It is with respect to the Suit No. 0/197/80 which is a judgment of the Anambra State High Court of Justice holden at Onitsha…Now, how did the Appellants demonstrate by evidence viva voce, that the land in dispute between them and the Respondent herein, is part of the land in dispute in the suit No. 0/197/80-Exhibit D2? That is, it was incumbent on the Appellants to have tied Exhibit D2 to the land in dispute. This, the Appellants could have demonstrated by giving the size and boundaries in Exhibit D2 as being larger than the land in dispute as shown in the survey plans – Exhibits P1, P2 and D1. The aforesaid Exhibit D2 was admitted into evidence through the 1st Defendant/Appellant who testified as DW1 at pages 519-521 …I have painstakingly perused the pieces of evidence proffered by DW1, DW2 and DW3 for the Appellants, but I am unable to see how Exhibit D2 was linked to Exhibits P1, P2 and D1; and that the said Exhibits P1, P2 and D1 which are with respect to the land in dispute are subsumed in Exhibit D2, which the Appellants gave the impression that the former, that is, the land in dispute, is part of the land in dispute in Exhibit D2.

Documents relied upon must be relevant and correlate to the facts in issue, otherwise, it cannot have any evidential value. Exhibit D2 has not been connected to the land in dispute to give it any strength or value. In fact, by the facts and records in the present appeal, it is obvious that Exhibit D2, though a subsisting judgment of the trial Court, was not in respect of the same parties and subject matter, to bind both the Appellants and the Respondent herein. In fact, Exhibit D2 is not a judgment concerning or in respect of OYOLU layout but ISIZUE layout and therefore irrelevant and without value or any help to the case of the Appellants.
To tender Exhibit D2 by the Appellants is more destructive than helpful to their case in proving the title or ownership of the land in dispute since it could not tie or connect the land in dispute. To tender an Exhibit is not for the fun of it but must be relevant in assisting the Court to determine the case before it. Besides, Exhibit D2 is not the genre or class of evidence referred to by Section 128(1) of the Evidence Act that the Appellants are still expecting this Honourable Court to act on.

The findings of the lower Court being in consonance with that of the trial Court are without defects or perverseness to be tampered with it or set aside. Based on the foregoing therefore, the two issues raised by the Appellants are resolved against them. This appeal fails and is hereby dismissed. Parties are to bear their costs.

OLUKAYODE ARIWOOLA, J.S.C.: I had the privilege of reading in draft the lead judgment of my learned brother Uwani Abba Aji, JSC just delivered. I agree entirely with the reasoning and conclusion of the lead judgment. I also find no merit in the appeal and deserve to be dismissed. Accordingly, it is dismissed by me.
Appeal dismissed.

JOHN INYANG OKORO, J.S.C.: I had the privilege of reading in draft the leading judgment delivered by my learned brother, Uwani Musa Abba Aji, JSC and I agree that this appeal has no merit.

​This Court has reiterated its standing a plethora of decided cases that it does not make it a habit of disturbing the concurrent findings of lower Courts except in exceptional circumstances, such as where the Court is satisfied that the concurrent findings are perverse and resulted in miscarriage of Justice. If the findings are shown not to have emanated from the evidence on record or are consequent upon wrong application of the law to facts, the Supreme Court may then interfere by making proper evaluation based on the evidence on record or rightly applying the law to the ascertained facts. See Woluchem vs. Gudi (1981) 5 SC.291; Ejikeme vs. Okonkwo (1999) & NWLR (Pt 362)226: Soronnadi vs. Durugo (2019) 6 NWLR (Pt.1668) 281.

The Appellants have failed to show any exceptional circumstance brought to the fore by Exhibit D2 to warrant the interference of this Court with the concurrent Judgment of the lower Courts or how those findings have been perverse. The subject matter in Exhibit D2 having been found to be entirely different from the Oyola Layout, the subject matter in this case, the findings of the two lower Courts are on firm ground and cannot be overturned.

​For the above reason and fuller reasons meticulously and efficiently adumbrated in the leading judgment, I also find no merit in this appeal. It is consequently dismissed. I also make no order as to costs.
Appeal Dismissed.

AMINA ADAMU AUGIE, J.S.C.: I had a preview of the lead Judgment just delivered by my learned brother, Abba Aji, JSC, and I agree with him that this Appeal lacks merit. Lis pendens means “a pending legal action”, and the principle behind the doctrine is that the subject matter of a Suit should not be transferred to a third party during the pendency of the Suit – see Bua V. Dauda (2003) 13 NWLR (Pt. 838) 657, where this Court listed conditions that must be shown, for the doctrine to apply:
(a) That at the time of the sale of the property, the Suit regarding the dispute about the said property was already pending.
(b) That the action was in respect of real property; it never applies to personal property.
(c) That the object of the action was to recover or assert title to a specific real property; that is to say, an action in a subject matter adverse to the owner in respect of some substantive right, which is proprietary in nature; and
(d) That the other party had been served with the originating process in the pending action.

In this case, the Court of Appeal affirmed the decision of the trial Court that the said doctrine of lis pendens is not available to the Appellant. It held as follows in respect of the Judgment delivered in Suit No. 01197180; that is Exhibit D2:
It is glaring to me, having perused pages 339-344 of the Record of Appeal, which contains the claim, Terms of Settlement and Consent Judgment of 5/5/1998 on Exhibit D2 that is Suit No. 0/197/80 whereas the grant made to the Respondent’s predecessor-in-title, the Roman Catholic Mission, Archdiocese of Onitsha, by the Nkwelle Ezunaka Community was in 1975. That is some 5-6 years before the action in Exh. D2 was filed. In the circumstances, I find that the conclusion reached by the learned trial Judge that the doctrine of lis pendens is not available to Appellants, is unassailable.

As I pointed out, the doctrine of lis pendens will apply only if the sale was made after the matter was already brought before the Court – Bua V. Dauda (supra). I will also say that the conclusion reached by the two lower Courts that the said doctrine is not available to the Appellants is “unassailable”; it is unquestionable.
The Judgment in Exhibit D2 encompassed the documents tendered as Exhibits P2 and D1, and from evidence led, the Respondent’s root of title was traced to Nkwelle Ezunaka Community, while the Appellants’ root of title was traced to Oze Community. By the said Exhibit D2, it is the Oze Community and Isiama Family that have authority over the said Isizue layout, and no other. In other words, the said Exhibit D2 does not strengthen the Appellants claim. It does not prove a better title, thus, the doctrine of lis pendens does not apply.

It is for this and the other well-marshalled reasons in the lead Judgment that I also dismiss this Appeal and affirm the decision of the Court of Appeal.
The Parties are to bear their respective costs. Appeal dismissed.

ABDU ABOKI, J.S.C.: I was privileged to read in draft, the lead judgment prepared by my learned brother MUSA ABBA AJI JSC just delivered. I entirely agree that there is no merit at all in this appeal which deserves to be dismissed.

​The facts leading to this appeal are that the Respondent, who was the Plaintiff at the Trial High Court of Anambra State, commenced this action by way of a writ of against the Appellants, as Defendants. In its amended statement of claim, the Respondent prayed the trial Court for:
1. N500, 000.00 (Five Hundred Thousand Naira) damages for trespass.
2. An Order of Perpetual Injunction restraining the defendant and co-defendants by themselves, their servants, agents, privies or successors-in-title from entering or remaining on the Plaintiffs’ land and from erecting or continuing with the erection of any buildings or structures on the Plaintiffs’ land shown and delineated on Plan. No MES/LD 14/2004 or doing anything thereon, or in any way whatsoever interfering with the Plaintiffs’ ownership and possession of the land.

The 1st and 3rd Appellants counter claimed against the Respondent in the following terms:
1. A declaration that the 1st and 3rd Defendants are the persons entitled to the grant of statutory right of occupancy in or over parcel of the land in dispute as shown on the Plan No. AC/LD09/2005 (Parcel A) filed by the 1stand 3rd Defendants in this suit.
2. An Order of Court for cancellation of any customary or statutory right of occupancy issued in respect of the 1st and 3rd Defendants’ land in dispute to the Plaintiffs and declaring same null and void.
3. N500,000.00 general damages for trespass and perpetual injunction restraining the Plaintiffs, by themselves, their agents, servants, privies or successor in office from further trespass to the 1st and 3rd Defendants land on dispute, annual valued N50,000.

The 2nd Appellant also counter claimed against the Respondent, as follows:
a. A declaration that the Registered Trustees of the Roman Catholic Mission of the Archdiocese of Onitsha did not pass any interest to the Plaintiff.
b. A declaration that the 2nd Defendant’s title to the land in dispute was first in time before that of the Registered Trustees of the Roman Catholic Mission of the Archdiocese of Onitsha and that of the Plaintiff.
c. A declaration that the 2nd defendant is the person entitled to the customary/statutory right of occupancy in and over his land in dispute as shown, delineated and marked Parcel B, in Survey Plan No.AC/LD/09/2005 filed in this Suit.
d. A declaration that all the Certificates of Occupancy issued in favour of Plaintiff and their predecessors in title is null, void and cancelled in so far as they have reference to and encroached upon the 2nd Defendant’s land in dispute.
e. A declaration that the land in dispute was originally that of Oze Community and not Nkwelle-Ezenuka Community and that the grant to the Plaintiff and their predecessors-in-title is null, void, and of no effect, taking into consideration judgment of the High Court in Suit No. 0/197/80 and the doctrine of lis pendens.
f. A declaration that the 2nd Defendant is the owner in possession of the land in dispute (Parcel B) in Defendants, survey Plan.
g. An Order of perpetual injunction restraining the Plaintiffs, their successors and predecessors-in-title and office, their agents, privies, workmen from disturbing interest of the 2nd Defendant on the land in dispute.
h. N4, 000, 000.00 (Four Million Naira) damages.

​At the trial, parties called witnesses and tendered exhibits in support of their respective claims, at the end of which the Trial Court enteredjudgment in favour of the Respondent herein, and dismissed the counter claims of the Appellants, holding inter alia, that the doctrine of lis pendens, was inapplicable in this case.

Dissatisfied with the judgment of the Trial Court, the Appellants appealed unsuccessfully, to the Court below, hence their further appeal to this Court, vide a Notice of Appeal filed on the 10th of August 2014, which contains three grounds of appeal.

The substance of the issues formulated by Counsel on both sides in the main, is whether the doctrine of lis pendens ought to be applied against the Respondent. While the Appellants argue that the doctrine of lis pendens operates against the Respondent, vide Exhibit D2, (Suit No, 0/197/80), the Respondent argued otherwise.

Lis pendens simply put, is a pending lawsuit. It is the jurisdiction, power, or control which Courts acquire over property in litigation, pending action until final determination. Equally, the doctrine of lis pendens evolved in order to prevent parties in a pending suit from alienating the subject matter so as to prejudice the opposite party.
In Oronti v. Onigbanjo (2012) LPELR 7804 SC, this Court held as follows:
“This Court had in Alhaji Usman Bua v. Bashiru Dauda (2003) 13 NWLR (Pt. 838) 657 per Uwaifo JSC reiterated the conditions on which the doctrine of lis pendens would apply. It was stated thus: That it must be shown (a) That at the time of the sale of the property, the suit regarding the dispute about the said property was already pending; (b) That the action or lis was in respect of real property; it never applies to personal property; (c) That the object of the action was to recover or assert title to a specific real property; that is to say, an action in a subject matter adverse to the owner in respect of some substantive right which is proprietary in nature; and (d) That the other party had been served with the originating process in the pending action. It must be stated that the four conditions above must co-exist before the doctrine of lis pendens would apply. Another way of saying it, is that the absence of any of those conditions would render inapplicable the doctrine. It is that simple.”

In the instant appeal, the Court below, at page 613 of the Record, held thus:
“On the issue of lis pendens, the said Suit No. 0/197/80 was filed in 1980. The grant, which was confirmed in 1985 by Exhibit P2 was made in 1975, before the suit was filed. The issue of lis pendens does not therefore arise on the facts of this case.”
I am in accord with the decision of the Court below. It is manifest from the content of Exhibit P2, that the Respondent has proved that the possession of the land by its predecessor-in-title, (the Registered Trustees of the Catholic Mission); commenced from 1975. The survey plan in Exhibit P2 shows clearly that the land in dispute was part of the land granted the Registered Trustees of the Roman Catholic Church, in 1975. What this implies is that Exhibit D2, i.e. Suit No. 0/197/80, was instituted about five (5) years, after the Respondent’s predecessors in title had acquired the land in dispute. The issue of lis pendens does not therefore arise on the facts of this case.

For the above reasons and the fuller ones set out in the lead judgment of My Learned Brother, Uwani Musa Abba Aji, JSC, I too hereby the decision of the Court below, I come to the conclusion that the appeal lacks merit and it is hereby dismissed.

​I abide by all consequential orders in the lead judgment; including the Order as to Costs.
Appeal Dismissed.

Appearances:

C. I. OKOYE, ESQ. WITH HIM, A. C. OKAFOR, ESQ. For Appellant(s)

IFEANYI EZEUKO, ESQ. WITH HIM, IBE OJILUDE, ESQ. AND C. C. EGBUCHUNEM, ESQ. For Respondent(s)