By Onozure Dania
LAGOS – A Lagos State High Court in Ikorodu has directed the Imperial Homes Mortgage Bank Ltd to sell Plot 3, Babafemi Osoba Crescent, Lekki Phase 1, Lagos following the failure of two defendants Latana International Ltd and OtunbaOlusola Adekanola to pay a debt of N797,916,579.93.
Justice O. A. Williams also granted an order of perpetual injunction restraining the defendants or their representatives from coming within a 100 metres of the property.
The court made the order after dismissing “in its entirety” the counter claim of first defendant Lantana International Ltd and second defendant OtunbaOlusolaAdekanola.
Justice Williams also awarded a cost of N500,000 against the first defendant and N150,000 against the second defendant.
Imperial Homes Morgage Bank Ltd had granted a loan of N490 million, to the first defendant for the development of the second defendant’s property, after the first defendant failed to fulfill its obligations, the claimant magnanimously made further disbursements to the first defendant to the tune of N90,688,915,000, to aid the completion of the first defendant’s project.
But the first defendant did not use the funds as promised and had remained indebted to the claimant. Following the failure of the first defendant to repay the loan it borrowed from the claimant, the claimant filed an application before the court, urging the court for an order of perpetual injunction restraining the defendants, their privies; assigns or any one claiming through, under or in trust for them from entering into or coming within a hundred metres radius of the property known and described as Plot 3 Obafemi Osoba Cresent, off Admiralty way, Lekki Phase 1, Lagos or dealing in any manner however called or described with the said property.
The claimant had also asked for an order directing it to sell the property if the defendants failed to pay the sum of N797,916, 579,73, with interest at the rate of 30% per annum within 14 days after judgment is delivered in the matter and also to apply the proceeds thereof for the liquidation of the facility.
The first defendant, while denying the claim by the claimant, averred that the claimant delayed in the disbursement of the funds for the execution of the project and denied being indebted to the claimant.
The defendant during trial pleaded that it repaid the agreed interest due on the loan but when it could not repay the loan at its maturity, the parties converted the loan to a joint venture business, the second defendant having already transferred his interest in the property to the first defendant, who was in the process of perfecting his title to the land before the loan was granted, a fact of which the claimant was aware.
It further contended that the joint venture agreement between the claimant and the first defendant erased the mortgage relationship, adding that the claimant and the first defendant acted according to and exercised their options as joint venture partners.
In denying the claim, the second defendant also pleaded that the claimant was aware that he was the previous owner of the mortgaged property, which was sold to the first defendant prior to the grant of the facility.
He was called uponý by the first defendant to execute the deed of legal mortgage because the first defendant had not perfected it’s title to the property at the time of the grant of the facility.
As the parties were not able to resolve the matter during the case management conference, it proceeded to trial.
Justice Williams ýsaid” it is well established that written contracts must be executed in accordance with specific requirements otherwise they will not be legally enforceable.
She said “Iný the final analysis I find and hold that on the preponderance of evidence and the balance of probabilities, the case of the claimant is more believable than that of the first defendant, I therefore find and hold that the relationship between the parties was one of a borrower and lender and not a joint venture, in that event, the counter claim of the first defendant
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