WHETHER ACTUAL OR CONSTRUCTIVE NOTICE IS IRRELEVANT TO THE DOCTRINE OF LIS PENDENS?

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WHETHER ACTUAL OR CONSTRUCTIVE NOTICE IS IRRELEVANT TO THE DOCTRINE OF LIS PENDENS? 

by Branham Chima. 

✓ DEFINITION(S): 
Lis pendens: The doctrine of lis pendens, in simple terms, refers to the principle that prevents the transfer of any property that is under dispute while litigation is ongoing. This means that during the pendency of a legal case or litigation, the property cannot be effectively transferred to another party. 

Actual notice: Actual notice refers to the direct or personal notification given to a party, informing them of a particular matter or case that could affect their legal rights or interests. It means that the party has received explicit information or communication regarding the matter in question. 

Constructive notice: Constructive notice, also known as imputed notice, is a legal concept that assumes a party should have known about a particular fact or matter, even if they did not receive direct or explicit notification. 

✓ ANSWER: 
Notice is irrelevant to the doctrine of lis pendens.

The purpose of this doctrine is to ensure that the vendor (seller) is unable to transfer any valid title or rights over the property to the purchaser while the case is still unresolved.

The principle of nemo dat quod non habet, which translates to ‘no one can give what they do not have’, applies in this context. This principle means that any sale or transfer of the property made during the litigation or the pendency of the action is considered invalid and can be defeated. In other words, if the vendor does not have the legal right or title to the property, they cannot pass on that right or title to the purchaser.

The doctrine of lis pendens serves to protect the interests of all parties involved in the dispute by maintaining the status quo and preventing any potential harm or injustice that may arise from the transfer of property during ongoing litigation. It ensures that the outcome of the legal case will not be compromised by allowing the property to be transferred to a third party before a final resolution is reached.

The above position was affirmed in by Oputa JSC in Osagie v. Oyeyinka & Anor. (SC.194/1985, Supreme Court, 12 June 1987), ‘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.’ 

It is important to note that the application and scope of the doctrine of lis pendens may vary in different jurisdictions, as it is a legal principle that can be influenced by specific laws and regulations. 

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