Le Meridien Grand Towers not for sale
Thursday, November 19, 2015
Le Meridien Grand Towers not for sale
On the publication of judgement in suit no: FHC/L/CS/1633/14 between Diamond Bank PLC and
1. Robert Dyson & Diket limited
2. SIO Properties Limited
3. Chief Sonny Odogwu
4. Corporation Affairs Commission
5. The Registrar of Title Federal Land Registry
6. Leadway Trustees Limited
CAVEAT EMPTOR
We have been retained as counsel to the 1st to 3rd Defendants and Appellants in respect of theappeal against the above judgment.
Our attention has been drawn to the publication of the judgment of Honourable Justice Saidu ofthe Federal High Court, Lagos delivered on the 3rd November, 2015 in various national dailies, with anadvertisement for sale of property at no. 31-35
Ikoyi Crescent, Lagos. We wish to state as follows:
1. The 1st to 3rd Defendants/judgment debtors have pursuant to their constitutional rightsfiled a Notice of Appeal dated 5th November, 2015
2. The 1st – 3rd Defendants have also filed a motion for Stay of Execution dated
5th November, 2015 and served same on the plaintiff/judgment creditor’s
counsel Messrs. Kemi Balogun & Co.
3. The act of publishing the judgment and putting the property up for sale via THISDAYNewspaper of November, 6, 2015, whilst the appeal and the motion for stay are pending isseriously prejudicial to the 1st – 3rd Defendants who have a right of appeal and haveexercised same.
4. The said publication is an attempt to deprive the 1st – 3rd Defendants of their right to fairhearing which includes their right of appeal, and we urge the general public to respect therights of the Defendants as well as the judicial system of Nigeria, and dis countenance theadvertisement of the property for sale. The right to sell the property is part of the subject matterof the pending appeal and stay application.
5. It is pertinent to state that the unholy speed with which the said publication was made is in breachof the holding period prescribed by the Sheriff and Civil Process Act.
6. The judgment being essentially a money judgment amongst other reliefs sought has aprocedure for execution under the Sheriff and Civil Process Act. Under the Act real property cannotbe sold until after execution against the moveables of the judgment debtor. No Writ of Fifa wasissued against the moveables of the judgment creditors before the advertisement of the immovable property for sale. Grant of leave to foreclose in the judgment did not remove the needfor compliance with the provisions of the Sheriff and Civil Process Act in execution of thejudgment.
7. The judgment creditor cannot execute the said Judgment whilst there is pending a motion for stay ofexecution and a Notice of Appeal. We wish to emphasise the judgment of the Supreme Court in thecase of Vaswani Trading Co. v. Savalakh (1971) 1 ANLR (Pt. 2) 483 where the apex Courtstated as follows :
"More important, however, is the duty of this court, as indeed that of the
other courts, to ensure that it's orders are not nugatory. The applicants are exercising theirundoubted right of appeal. The respondents are well aware of this and the applicants are certainlyentitled to so exercise that right as long as they do so in accordance with the provisions of thestatute conferring the right.
8. The judgment relates to a bridge finance of N5.052 billion (the Facility) for development of Le Meridien Grand Towers Project at Ikoyi Lagos (the Project). The bridge finance was to last tillwhen Diamond Bank Plc was to arrange the full project finance which was to take it out, preciselywhy it was called bridge finance to bridge between construction and financial closing but DiamondBank Plc refused, failed, omitted and or neglected to achieve full project finance and financial closure for the Project in accordance with usual professional banking practice.
9. Instead the bank brought a whopping and incredible claim for the sum of N26,229,943,035.22(i.e. over N 26.2 Billion) based on the bridge finance of N5.052 billion (the Facility). The claim was deeply disputed resulting in intervention by the apex regulator as mediator andregulator of the banking industry. Counsel for 1st to 3rd Defendant to the knowledge of the Plaintiffhad actually intimated the Court formally in October 12, 2015 about the above and ensuingsettlement talks, and the major parties were still billed
to report amicable settlement and obtain an adjournment from the court’s adjourned datefor judgment (November 3, 2015) to finalize resolution of the dispute.
10. Notwithstanding the foregoing and request for time for the parties to concludesettlement, the Federal High Court coram Honourable Justice Saidu delivered a judgmentendorsing all the reliefs sought by the judgment creditor including a monetary judgment in thesum of N26,229,943,035.22 and ordering the 3rd Defendant to guarantee the said sumpersonally.
11. All members of the general public are therefore warned by this present advertisement toavoid purchasing litigation as opposed to a proper real property interest from a judgmentcreditor whose interest has not in any way crystallized. We implore the applicable adageCaveat Emptor (“Buyer beware ”). We also contend that the doctrine of lis pendens isapplicable.
In this premise, we urge the general public to disregard the advertisement for sale in the publicationunder reference, as the property is the subject of an appeal with pending application for stay ofexecution. We further restate the commitment of the promoters to the Project and to all their creditorsincluding reasonable claim by Diamond Bank Plc.
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