AN ANALYSIS OF THE DOCTRINE OF NOTICE IN THE DETERMINATION OF EQUITABLE RIGHTS

CHAPTER ONE

GENERAL INTRODUCTION

• Background to the Study
• When the court of equity introduced some rules and doctrines to mitigate the harshness of Common Law, with it came the Doctrine of Notice. The doctrine was a tool by the court of equity (the Chancery Court) to determine priorities between rival claimants of interest in property especially where one is an equitable interest and the other a legal interest.
• Prior to the evolution of the Court of Equity the only judicial nomenclature available to the English man of the time was the Common Law courts. These courts were bound by strict rules which occasioned great hardship to the people of the time. Worst still, the rules were so religiously adhered that they could not be varied even for a just course. Instances of such rules abound but one example is where the Common Law court under a trust only recognized the right of the legal owner of property (the trustee) and disregarded beneficiary’s equitable interest on the property even where duly and rightfully entitled.
• However, with the advent of the Court of Equity, it regarded the beneficiary of a trust property even though with equitable interest to be the owner of that property. Therefore, while the trustee was the owner at law, the beneficiary was the owner in equity. These conflicting opinions of the different courts brought about two distinct rights; legal rights and equitable rights with the former being enforced by the Common Law Court and latter by the Court of Chancery.      
• With the fusion of the Court of Chancery and the Common Law Court by the Judicature Acts of 1873 -75, there was still great need to distinguish between legal and equitable rights as it was the administration of the rights and not the rules of the court that were fused. Hence where ‘A’ acquires a legal interest in property for value without notice of ‘B’s prior equitable interest, ‘A’ will take free. But if ‘A’ acquires an equitable interest without notice of ‘B’s prior equitable interest ‘A’ takes subject to the interest of ‘B’. Where however, ‘A’ acquires an interest whether legal or equitable with notice of ‘B’s prior equitable interest, ‘A’ takes subject to ‘B’s. By this, the doctrine of notice was created by equity as a tool to determine priorities amongst competing interest.
• The question of priority becomes important when there are two or more competing interest in property, more so when the various competing interest cannot be satisfied by the total value of the property that is subject to these interests. According to Maitland;
• It happens with unfortunate frequency that a man having title to land contrives by means of fraudulent concealment to get money from a number of different persons on the security of the land – then disappears – and the lenders are left to dispute among themselves as to the order in which they are to be paid out of the value of the land which is insufficient to pay them all. [1]
• Where such is the case the doctrine of Bona fide Purchaser of Legal Estate for Value Without Notice is employed to determine the interest of the parties involved.
• The function of notice is not to create a property right, it is to prevent the holder of a superior title from using such title for a purpose that is inconsistent with good faith and honest dealings. The importance of notice therefore is that it enables a court of equity to bind the conscience of a purchaser of a superior title and forbid him to set up his superior title against prior owners of inferior interest affecting the property. It is clear therefore that a purchaser of legal estate with notice of prior equitable interest affecting property takes subject to the prior equitable interest. [2]
• The focal point of this study therefore is the role of the Doctrine of Notice and instances where it can be invoked to determine the equitable rights of individuals.    
• Statement of the Problem
• From early times even up to the present, there exist those greedy business men who always seek to eat their cake and have it. With that, it is not uncommon to see more than one person claiming ownership to the same piece of property sold to them by the same business man. In fact, in Nigeria, it is very common for the same piece of land to be sold, leased or mortgaged to several persons at the same time and it is even more rampant with family land.
• There is also this general laxity on the part of purchasers to make due inquiry into the property they intend to acquire. Some may even turn a blind eye to information accidentally acquired and still proceed to make payment on a disputed property possibly due to the fact that an assurance of the transfer of all legal rights to the property was made them.
• There are also instances where the right to a debt or any legal thing in action may be assigned to more than an individual. In such a case, whose right to the chose should the debtor recognize? And whose should he not?
• Where such issues are raised, how can they be reconciled? Who takes priority over the other? It is in such situations that the Doctrine of Notice  is employed to clarify issues and ascertain the rights of the parties involved.
• Basically this study shall tackle three questions viz:
• Has the doctrine of notice helped to streamline land transactions in Nigeria?
•  How can the doctrine of notice be employed in the determination of equitable interests in land and other forms of estate contract? 
• How does the Doctrine of Notice operate in assignment of choses in action especially where the assignment is equitable? 
• Objectives of the Research
• The fundamental objective of this study is to determine the role of the Doctrine of Notice in the determination of the rights of individuals with two competing interests. Specifically,
• To examine how the doctrine of notice has helped to streamline land transactions in Nigeria.
• To examine how the doctrine of notice is employed to determine the equitable interest of individual in land transactions and other forms of estate contract.
• To examine how the doctrine of notice operate in assignment of choses in action especially where the assignment is equitable  
• Scope of the Research
• This research is not restricted to the application of the Doctrine of Notice in Nigeria alone but by virtue of the reception of the Common Law of England, the Doctrines of Equity and the State of General Application, into Nigeria, recourse will be made to England as well. Thus, Nigeria Laws and authorities as well as laws of English jurisdiction shall be referred to where need be.
• Research Methodology
• The research method of this work is doctrinal. In the course of the work, recourse shall be made to the primary sources of law such as legislations and case-law. There shall also be the use of the library and other places for secondary sources like textbooks, journals, lecture notes and the internet shall also be utilized as a source material for information relating to this work.
• Organizational Layout
• This work is divided into five chapters. Chapter one deals with the introductory aspect, setting out clearly the general introduction to the work, the statement of the problem, objective of the study, and the scope of research. Other things to also be considered shall be the method of research and the organization of the work.
• Chapter two treats the general concept of the Doctrine of Notice, focusing on the definition of Notice, its nature, the evolution of the Doctrine and its reception into Nigeria, the types of Notice which is divided into Actual, Constructive and Imputed Notice.
• Chapter three covers notice and equitable interest in land and other forms of Estate Contract, dealing with priority and the Doctrine of Bonafide Purchaser of a Legal Estate for Value Without Notice of a prior or pre-existing equitable interest. The chapter shall also cover the role of Notice in Land and other Estate Contracts, the role of Notice in equitable lien and the registration of instruments and its relation to the Doctrine of Notice.
• Chapter four deals with Notice and Assignment of Choses in Action, elucidating on the definition of Choses in Action, Classification of Assignment, conditions for a valid statutory Assignment of a legal or equitable chose, Equitable Assignment, Notice to the Debtor or trustee, the rule in DEARLE v HALL, [3] and notice as a bar to the assignee taking subject to equities.
• Chapter five which is the final chapter covers the summary, recommendations and conclusion of the work.