By Eric Elezuo

Stakeholders associated with the building that collapsed on Gerrard Road, Ikoyi, better known as 360 Degrees, on November I, 2021, have sued the Lagos State Governor among a host of others for what they called Negligence of the Lagos State Building Control Agency and Unlawful expropriation of equitable interests in the property.

In a letter dated August 8, 2022,  and signed byTope Adebayo, LLP and
Joseph Uche Anyebe, Esq, the stakeholders, who identified themselves as members of class of subscribers of various units, are seeking an order of perpetual injunction jointly and severally either by themselves, servants, agents, privies or otherwise howsoever called from disturbing, interfering with, taking, receiving or in any way taking possession of, demolishing, divesting and/or revoking the title, disposing of all or any part of the property, landed or otherwise, known as “360° Ikoyi” situate, lying and being at 44BCD, Gerrard Road, Ikoyi-Lagos State.

Read the letter in full:

8th August 2022.
The Honourable Commissioner
Lagos State Ministry of Physical Planning & Urban Development
Alausa, Ikeja
Lagos State.
Dear Sir,

MEMORANDUM OF CLAIM PURSUANT TO THE HIGH COURT OF LAGOS STATE (EXPEDITIOUS DISPOSAL OF CIVIL CASES)

PRE-ACTION PROTOCOL

We refer to the above subject matter.

We act on behalf of Mr. Oluwemimo Adepoju Ogunde SAN, Pastor Adetola Odutola, Mr. Bola Odutola, Mrs. Bunmi Odutola, Mr. Ghandi Olaoye, Ms. Zahra Temitope Motomori, Kwara Business School Limited, Saikoyi Property Limited, Mr. Adewale Folowosele, Mrs. Foluso Folowosele, Mr. Moses Anibaba, Mrs. Margaret Anibaba, Dr. Oladipo Oluyomi, Mrs. Adepeju Oluyomi, Mr. Tayo Oladapo (members of class of subscribers of various units of flats/penthouses/terraces/apartments in the 3 towers/high-rise buildings on the land known as “360° Ikoyi” at 44BCD, Gerrard Road, Ikoyi-Lagos State). It is on their definite and express instructions we notify the Governor of Lagos State, the Attorney General of Lagos State, Lagos State Ministry of Physical Planning and Urban Development, Lagos State Building Control Agency and Edge of Design Limited of the Claimants’ intention to commence legal proceedings against them.

BASIS OF CLAIM

The basis of this claim is grounded on the following cause of action:
Negligence of the Lagos State Building Control Agency.
Unlawful expropriation of equitable interests in the property (landed or otherwise) by the Government of Lagos State or any of its agencies.

SUMMARY OF FACTS

The summary of facts culminating in the aggregate action to be instituted by the Claimants against the Defendants is as follows:
The Claimants are members of the class of subscribers of various units of flats/penthouses/terraces/apartments being constructed in the 3 towers/high-rise buildings on the land known as “360° Ikoyi” at 44BCD, Gerrard Road, Ikoyi-Lagos State and have parted with monies as consideration for the various units of flats offered to them by Fourscore Heights Limited.
The Claimants were encouraged and motivated to take up the offers for the various units of flats in Towers of the high-rise buildings on the land known as “360° Ikoyi” at 44BCD, Gerrard Road, Ikoyi-Lagos State and made payments in respect of same on the understanding that the properties are to be constructed in Lagos State under the thorough and strict supervision of a prime regulator, the Lagos State Building Control Agency established pursuant to the Urban and Regional Planning and Development Law, 2010 of the State.

Despite their well-founded belief that the 3 Towers of the high-rise buildings on the land known as “360° Ikoyi” lying, being and situate at 44BCD, Gerrard Road, Ikoyi-Lagos State would be structurally sound, the construction of same which by their nature would have been adequately regulated and the engineering activities constantly probed, Tower 1 on the construction site however collapsed on 1st November 2021 leading to the unfortunate death of the Managing Director of Fourscore Heights Limited, Mr. Olufemi Osibona and other persons.
The Government of Lagos State through the Lagos State Ministry of Physical Planning & Urban Development and Lagos State Building Control Agency stopped all building works on the construction site of Fourscore Heights Limited, and took over the construction site.

Lagos State Building Control Agency was negligent in the proper performance of its statutory duties which led to the eventual collapse of one of the three towers on the construction site at 44BCD, Gerrard Road, Ikoyi-Lagos State.

Having made payments for the purchase of the various units of flats in the 3 Towers of the high-rise buildings on the land known as “360° Ikoyi” at 44BCD, Gerrard Road, Ikoyi-Lagos State in line with their individual agreements/contracts of sales with Fourscore Height Limited, the Claimants have acquired equitable interest in the property.

Had the 1st tower not collapsed owing to the negligence of Lagos State Building Control Agency, the subsequent take over of the construction site and prevention of further works in respect of the 2nd & 3rd towers, the Claimants would have taken full benefits of the interests that have accrued to them after having purchased several units of flats in the 3 Towers. The Claimants would have further taken steps in addition to their equitable interests to ensure that they acquire the legal interests in their property.

Owing to Lagos State Building Control Agency’s abdication of its duty of reasonable care and skill in the performance of its statutory functions and the resultant damage following the collapse of Tower 1 on the construction site on 1st November 2021, the subsequent cessation of building works and taking over of the construction site, Lagos State Building Control Agency has caused the Claimants to lose the chance to take full benefit from their investments in the property.

Despite the apparent negligence of Lagos State Building Control Agency in the proper performance of its statutory function, after having taken over the construction site, there are plans in top gear by the Lagos State Government to revoke the title of Fourscore Heights Limited in the entire property lying, being and situate at 44BCD, Gerrard Road, Ikoyi-Lagos State and deem the said property as having been forfeited to the government pursuant to LABSCA Regulations, 2019.
The Lagos State Government has gone ahead to appoint Edge of Design Limited to immediately take steps to demolish the 2nd & 3rd Towers of the high-rise buildings on the land known as “360° Ikoyi” lying, being and situate at 44BCD, Gerrard Road, Ikoyi-Lagos State when independent evidence of an unfavourable non-destructive test results has not been produced.

Any compulsory acquisition of the property at 44BCD, Gerrard Road, Ikoyi-Lagos State by way of forfeiture in favour of the Lagos State Government would amount to rewarding the Lagos State Government by making them take benefit from the negligence of one of its agencies and in complete disregard of the equitable interest of the Claimants which is worthy of protection by the Court.

RELIEFS AND REMEDIES

WHEREOF the Claimants would urge the Honourable Court to grant the following claims:
A DECLARATION that the agreements between Fourscore Heights Limited and each of the Claimants to acquire units of flats with agreed considerations paid, entitle the Claimants to equitable rights and interests in the property known as “360° Ikoyi” at 44BCD, Gerrard Road, Ikoyi-Lagos State by virtue of the legal title conferred on Fourscore Heights Limited by the 1st Defendant in the Certificate of Occupancy Number 48/48/2020A dated 3RD February 2020 and registered as Number 48 at age 48 in Volume 2020Aat the Land Registry, Alausa, Ikeja, Lagos State.

A DECLARATION that the 1st, 2nd, 3rd and 4th Defendants were negligent in the performance of their duties by failing and/or neglecting to supervise the construction of one of the three towers at 44BCD, Gerrard Road, Ikoyi-Lagos State in line with Regulations and the negligence led to the eventual collapse of the tower.
A DECLARATION that the 1st, 2nd, 3rd and 4th Defendants cannot benefit from their negligence by compulsorily, wrongfully, illegally and punitively acquiring or threatening to acquire the property known as “360° Ikoyi” at 44BCD, Gerrard Road, Ikoyi-Lagos covered by Certificate of Occupancy Number 48/48/2020A dated 3rd February, 2020 and registered as Number 48 at Page 48 in Volume 2020A at the Land Registry, Alausa, Ikeja, Lagos State through forfeiture and/or purported forfeiture to the Lagos State Government following the collapse of one of the towers.

A DECLARATION that the provisions of the Lagos State Urban and Regional Planning and Development Law & the Lagos State Building Control Agency Regulations, 2019 being relied upon to compulsorily acquire the property known as “360° Ikoyi” at 44BCD, Gerrard Road, Ikoyi-Lagos State covered by Certificate of Occupancy Number 48/48/2020A dated 3rd February, 2020 and registered as Number 48 at Page 48 in Volume 2020A at the Land Registry, Alausa, Ikeja, Lagos State by way of forfeiture cannot apply in the face of the negligence of the 1st, 2nd, 3rd and 4th Defendants to perform their duties and when the Claimants’ interests (as third parties) would be adversely affected.
A DECLARATION that any demolition of the 2nd and 3rd Towers on the land known as “360° Ikoyi” at 44BCD, Gerrard Road, Ikoyi-Lagos State covered by Certificate of Occupancy Number 48/48/2020Adated 3rd February, 2020 and registered as Number 48 at Page 48 in Volume 2020A at the Land Registry, Alausa, Ikeja, Lagos State by the 5th Defendant on the instructions of the 1st – 4th Defendants or any other persons claiming to represent the Lagos State Government when independent evidence of an unfavourable non-destructive test results has not been produced will adversely affect the equitable interests of the Claimants in the said properties.
A DECLARATION that the Claimants’ equitable interests in the property (landed or otherwise) at 44BCD, Gerrard Road, Ikoyi-Lagos State covered by Certificate of Occupancy Number 48/48/2020A dated 3rd February, 2020 and registered as Number 48 at Page 48 in Volume 2020A at the Land Registry, Alausa, Ikeja, Lagos State cannot be expropriated and/or divested by the Government of Lagos State or any of its agencies.

A declaration that the overt move and the action taken and being embarked and contemplated to be embarked upon by the 2nd to 5th Defendants on behalf and at the instruction of the 1st Defendant to demolish or preparing to demolish the structures of Towers 2 and 3 of the property situate at No.44BCD Gerrard Road Ikoyi Lagos State is a flagrant violation of the Claimants’equitable interest in the aforesaid property.

AN ORDER restraining the 1st to 5th Defendants either by themselves, servants, agents, or privies from trespassing or further trespassing, demolishing or further demolishing the properties known as Tower 2 and Tower 3 lying, being and situate at No.44BCD Gerrard Road Ikoyi Lagos State covered by Certificate of Occupancy Number 48/48/2020A dated 3rd February, 2020 and registered as Number 48 at Page 48 in Volume 2020A at the Land Registry, Alausa, Ikeja, Lagos State until an independent audit of the property is carried out by the Council For The Regulation of Engineering in Nigeria (COREN).

AN ORDER OF PERPETUAL INJUNCTION restraining the 1st – 5th Defendants jointly and severally either by themselves, servants, agents, privies or otherwise howsoever called from disturbing, interfering with, taking, receiving or in any way taking possession of, demolishing, divesting and/or revoking the title, disposing of all or any part of the property, landed or otherwise, known as “360° Ikoyi” situate, lying and being at 44BCD, Gerrard Road, Ikoyi-Lagos State covered by Certificate of Occupancy Number 48/48/2020Adated 3rd February, 2020 and registered as Number 48 at Page 48 in Volume 2020A at the Land Registry, Alausa, Ikeja, Lagos State.
General damages against the Defendants in favour of the Claimants in the sum of N200,000,000.00 (Two Hundred Million Naira) only
The sum of N50,000,000 (Fifty Million Naira) only being the cost of this suit.

EXHIBITS IN SUPPORT OF THIS CLAIM

The 1st Claimant’s offer letter dated 19th December 2019.

The letter of 17th January 2020 wherein Fourscore Heights Limited acknowledged receipt of the payment of $111,111.11, the trail of WhatsApp messages between Mr. Femi Osibona and the 1st Claimant acknowledging further payment of $120,000 and the acknowledgement of the receipt of $20,000 received by Ayodele Nifemi to be given to Mr. Femi Osibona.

The 2nd Claimant’s offer letter of 19th December 2019.

The acknowledgement letters of the receipt of the sum of $315,586.78 and $7,708 both dated 25th August 2021
Fourscore Heights Limited’s letter dated 05/12/2019 acknowledging receipt of the 1st instalment payment and its subsequent letter dated 5th May 2021.
The unexecuted contract of sale and the trail of WhatsApp messages between the 3rd Claimant and Mr. Femi Osibona, the late Managing Director of Fourscore Heights Limited.

The unexecuted contract of sale between the 5th Claimant and Fourscore Heights Limited.

6th Claimant’s offer letter dated 28th January 2019 and the signed document showing receipt of payment.

The offer letter (letter of allocation) dated 3rd August 2020 and the 7th Claimant’s evidence of payment of the consideration.

The offer letter (letter of allocation) dated 3rd August 2020 and the 8th Claimant’s evidence of payment of the consideration.

The 9th & 10th Claimants’ offer letter dated 23rd October 2019 and the various GTB online transfer advice.
The 11th & 12th Claimants’ offer letter dated 6th August 2019 and the signed document showing receipt of one of the payments.

The 13th & 14th Claimants’ offer letter dated 27th February 2019 and some of the payment debit advice.

The 15th Claimant’s offer letter dated 15th January 2019 and the signed document showing receipt of one of the payments.

The online newspaper publication of the CABLE with the caption “REWIND: In 2020, Femi Osibona resisted the sealing off of his 21-storey Ikoyi building (video)” published on 4th November 2021 on https://www.thecable.ng/rewind-in-2020-femi-osibona-resisted-the-sealing-off-of-his-21-storey-ikoyi-building.

PROPOSAL FOR SETTLEMENT OF DISPUTE

The Claimants hereby propose a negotiated settlement where parties would meet on a date, time, and venue to be agreed upon within 7 days of the receipt of this memorandum. At this meeting, you are also at liberty to come up with reasonable suggestions on how we can amicably resolve this dispute to prevent this matter from degenerating to a full-blown litigation.

TAKE NOTICE that by the provisions of the Practice Direction No 2 of 2019 (Expeditious Disposal of Civil Cases) Pre-Action Protocol of the Lagos State High Court (Civil Procedure) Rules 2019, THE DEFENDANTS shall respond to this Memorandum of Claim not later than 7 days from service of the Memorandum and not later than 7 days from the service of the Claimants’ reminder.
Please accept the expression of our warmest regards.
Yours faithfully,

For: Tope Adebayo, LLP
Joseph Uche Anyebe, Esq.