Nigerians public may not have heard the last about Ikoyi’s building collapse as no fewer than fifteen subscribers/investors have suddenly surfaced and sued the Lagos State Government over the collapse of the high-rise development at 44BCD, Gerrard Road, Ikoyi, in November 2021.
This is coming barely nine months the building caved in and exactly two months the Lagos State Government contracted the remaining two ‘unfit’ towers on the site to a private firm, Messrs Edge of Design Limited, for demolition.
The collapse of one of the three towers, known as “360 Degrees Towers”, being developed by Fourscore Heights Limited, led to the death of no fewer than 42 persons. The promoter of the company,Mr. Femi Osibona, also died in the tragedy.
The subscribers, who are claimants, are seeking an order restraining the defendants from trespassing or further trespassing, demolishing or further demolishing the properties known as Tower 2 and Tower 3 until an independent audit of the property is carried out by the Council for the Regulation of Engineering in Nigeria (COREN), among others.
Since the latest unfolding event, real estate developers have not stopped to express mixed reactions over the issue.
While some see demands by the claimants as justifiable, blaming the failed project on the negligence of the agencies of the Lagos State Government aimed at curbing building collapses, others put the blame at the doorstep of the developer and subscribers for not following government’s laid down rules on physical development, and for failing to take insurance policies to protect their investments.
Claimants
The claimants comprise senior lawyers, pastors, business people and companies
They also request for an order of perpetual injunction restraining the defendants 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.
They have applied to the judge to grant an ex-parte originating motion during the court’s annual vacation.
Some of the investors claimed to have paid the late Odubona various sums of money in dollars -$120,000, $111, 111. 11, $20,000, $315,586.78 and $7,708.
According to a media report, these were contained in the writ of summons, dated August 12, 2022, and marked Suit No LD/3962LM/22, filed on behalf of 15 of the subscribers by A.U. Mustapha, a senior lawyer, before a Lagos state high court.
Named as defendants are the governor of Lagos State, the Attorney-General of Lagos, the state Ministry of Physical Planning and Urban Development, the Lagos State Building Control Agency (LASBCA) and Edge of Design Limited.
The claimants are seeking general damages of N200,000,000 and another N50,000,000 as the cost of filing the suit.
They are asking the court to declare, among things, 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 other two towers at 44BCD, Gerrard Road, Ikoyi;
The first, second, third and fourth defendants were negligent in the performance of their duties by failing and/or neglecting to supervise the construction of one of the three towers;
That the first, second, third and fourth defendants cannot benefit from their negligence by compulsorily, wrongfully, illegally and punitively acquiring or threatening to acquire the property at 44BCD through forfeiture and/or purported forfeiture to the Lagos state government following the collapse of one of the towers;
Any demolition of the two other towers 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;
The claimants’ equitable interests in the property cannot be expropriated and/or divested by the government of Lagos state or any of its agencies.
The “overt move” and the action taken and being embarked and contemplated to be embarked upon to demolish or preparing to demolish the structures of Towers 2 and 3 of the property is a flagrant violation of the Claimants’ equitable interest in the aforesaid property.
Government
The Lagos State Government has not comment on the summon as a source said the authority was studying the memorandum of claim served on the company handling the demolition of the standing two towers after the incident.
It would be recalled that in June 2022, the Lagos State Government rolled out plans to demolish the remaining buildings on the land, where the 21-storey building collapsed on Gerrard Road, in Ikoyi.
Commissioner for Physical Planning and Urban Development, Idris Salako, had disclosed this during the handing over of the complex to the contractor for deconstruction
Salako said the buildings would take about three months or more, to be demolished, adding that the land on which the structures were situated would be taken over by the state government.
He noted that the taking over of the land was in line with the state physical planning law, which stated that owners of collapsed buildings would forfeit the land to the state.
Experts’ mixed reactions
Talking about the issue on the social media created by Festus Adebayo-led’s Housing Development Advocacy Network, a real estate expert, Mr Femi Oyedele said that the stoppage of Lagos Government taking over the land on which the collapsed building stood shouldn’t be the main crux but part of the claimants’ numerous claims.
He is of the opinion that the claimants should ask for damages to recover their loss and post-incident trauma suffered after the loss of a coveted asset.
On point of law, he said “he who comes to equity must come with a clean hand,” noting that the Lagos State Government did not come with a clean hand in its attempt to confiscate the land on which the collapsed building stood based on its building collapse’s law.
“The Lagos State Urban and Regional Planning and Development Law 2010 which birthed Lagos State Building Control Agency (LASBCA) stated in its introduction that LASBCA “is an agency of government set up to ensure that basic minimum standards are maintained in building construction and renovation of existing and new buildings to be safe, healthy, accessible and habitable for present and future generations”.
According to Oyedele, LASBCA words should be its bonds, adding “in the whole world, Lagos State has the highest number of building control and monitoring agencies.
“It has (1) Lagos State Ministry of Physical Planning and Urban Development, (2) Lagos State Physical Planning and Development Authority, (3) Lagos State Physical Planning Permit Authority, (4) Lagos State Materials Testing Laboratory, (5) Monitoring, Enforcement and Compliance (MEC) Department of Lagos State Ministry of Environment and (6) LASBCA.
“If with all these duplicated agents of Lagos State government aimed at curbing building collapses, building are still collapsing, it can only be due to negligence and dereliction of duty by government.
“The claimants should ask for damages to recover their loss and post-incident trauma suffered after the loss of a coveted asset,” Oyedele said.
The 1st Vice President, Nigerian Institution of Estate Surveyors and Valuers, Mr Victor Alonge, said there was a need to separate sentiments and emotions from statutory reality, pointing out that the position of the law regarding government’s takeover of the site of collapsed buildings must be understood.
He explained that the developer had the obligation to comply with the law, regulations and planning and development approvals.
Alonge added that the developer and the investors also had the option of taking out insurance policies to protect their investments.
According to him, if all these parties failed to comply with or observe due diligence in their transactions which had since ended tragically, it would be difficult to turn around to blame government for their loss.
If a clear case of dereliction of duty and/or negligence is proven against any/all of the agencies, Alonge said the court could be approached for appropriate compensation.
“But we must, however, recognise the fact that this action cannot prevent the government from enforcing the law within regards to the acquisition of the site of the collapsed buildings including the demolition of the remaining unfit buildings on the site,” the 1st vice president of NIESV’ said.
Another professionals, Chukuma Catchy, said the agencies of government as regards physical development were too many,
He said: “Too many cooks spoil the broth. No wonder the negligence and competence. All that is required is one agency i.e. the Town Planning Authority. If necessary they may have outlets in each Local Government Area’s Office.”
Coroner’s Inquest
Early August, a Coroner’s Inquest had indicted government agencies for the Ikoyi building collapse. The Coroner, O. A. Komolafe gave the verdict on an inquest instituted by the Lagos State government.
Komolafe noted that the building’s density and setback on the site showed a gross violation of the Lagos State Building Regulations.
He said the project board, which should have shown the important information, such as the names and addresses of the professionals engaged, was deliberately not provided.
He noted that the act showed that the approving and supervising agencies did not sanction the offender, suggesting that they were compromised.
He found that the structural failure was due to design errors, saying there was a lack of quality assurance and poor management of the project.
The coroner adopted the recommendation contained in the Council for the Regulations of Engineering in Nigeria (COREN) report on the collapse.
Lagos’ White paper
It would be recalled the Lagos State White Paper on the recommendation by the six-man panel set up by Governor Babajide Sanwo-Olu on the collapse of the 21-storey building on Gerrard Road, Ikoyi, accepted the recommendations of the panel report that the owners of the structure, Messrs Fourscore Heights should be prosecuted and the property forfeited to the state government.
The panel had recommended that, “the developer, having been negligent, should forfeit the project site to the Lagos State Government in accordance with Section 25(4) of the Revised LABSCA Regulation 2019. The Developer, Fourscore Heights Limited should be prosecuted in view of the loss of lives involved.”
The White Paper also stated that, “the various participants should face disciplinary action and prosecution as applicable.”
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