4TH DEFENDANT’S COUNTER AFFIDAVIT AGAINST THE PLAINTIFF’S MOTION ON NOTICE DATED 5TH OCTOBER, 2014

IN THE FEDERAL HIGH COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
SUIT NO: FHC/L/CS/1673/14

WEBB TOWERS LIMITED            ----------------------------- PLAINTIFF/APPLICANT

AND

1.    THE HON. MINISTER OF THE ENVIRONMENT,
HOUSING AND URBAN DEVELOPMENT

2.    PRESIDENTIAL IMPLEMENTATION COMMITTEE
ON THE ALIENATION OF FEDERAL GOVERNMENT      -------DEFENDANTS/RESPONDENTS
LANDED PROPERTIES               

3.    THE ATTORNEY GENERAL OF THE FEDERATION
AND MINISTER OF JUSTICE

4.    COLONEL DAVID BINITIE (RTD)                   ------------------- DEFENDANT


4TH DEFENDANT’S COUNTER AFFIDAVIT AGAINST THE   PLAINTIFF’S MOTION ON NOTICE DATED 5TH OCTOBER, 2014

I Col. David  Binitie of  25 Ilabere  Avenue  Ikoyi  Lagos,  retired  Military  officer, Nigerian Citizen  make oath and say as follows;

1.    That I am the 4th defendant in this case and by virtue of my position, I am familiar with the facts of this case.

2.    That the facts herein deposed to are within my personal   knowledge or which I otherwise believe to be true and correct as indicated thereunder.

3.    That uptill date I have not been served by the Court Bailiffs with the Originating processes nor the Motion paper.  

4.    That the Plaintiff instead left at my residence at 25, Ilabere Avenue, Ikoyi; photocopies of the originating process bearing the Suit No. in this  case and along with photocopies of a Motion on Notice both marked “Advance Copy”.

5.    That I subsequently made enquiries at the Federal High Court Registry on resumption from the Court’s Strike and found out that the suit has been assigned to the Court of Hon. Justice Abang; and fixed for 10th February, 2015.

6.    That I was informed my Counsel of Messrs Layi Babatunde (SAN) & Co; of my findings whereby they wrote a letter on my behalf to Plaintiff’s Counsel requesting that I be served with the Court processes. A copy of the Letter is attached and marked exhibit “A”.

7.    That the Plaintiff’s Counsel has not replied to the said letter nor caused me to be served with the processes till date.

8.    That in the circumstance I am compelled to respond to the Advanced Copies left on my premises so as not to leave the suit undefended.

9.    That I have read the Affidavit of Ihechi Chikezi, of Counsel in support of the Motion on Notice and hereby state as follows:

(a)    That as the official and recognized sitting Tenant occupying the property known and called 25, Ilabere Avenue Street, Ikoyi; Lagos State; I am entitled to a right of first refusal based on a Federal Government policy on the disposal of such properties.

(b)    That I have since exercised my right and clearly demonstrated my intention to purchase the said property by completing and submitting the required papers and paying the specified processing fees.

(c)     That I am however waiting to be issued with the required offer letter and subsequent title document (Certificate of Occupancy) upon payment of required sum.

(d)    That the Plaintiff in the interim approached me sometime in 2008 with a view to purchasing the property from me subsequent to my full acquisition of same from the Federal Government whereby a Memorandum of Understanding (MOU) dated 15th day of July, 2008 was executed with the Plaintiff.

(e)    That the 1st – 3rd Defendants are not parties to the MOU.

(f)    That pursuant to the said MOU the Plaintiff in further expression of its interest to purchase the property …… on it being secured advanced on Account the sum of N5,000,000.00 to me. A copy of the MOU is attached and marked Exhibit “B”.

(g)    That under the said MOU, its PURPOSE was clearly stated as follows:

“PURPOSE
Party A, is therefore empowered by this Memorandum of Understanding to enter into negotiations with the Presidential Implementation Committee and or other legal means to secure Letters of Offer or a replacement of the subject property by one which is of the same value, size and dimension in the Ikoyi area of Lagos State, the success of which guarantees an assignment of the rights of Party B on the property to Party A.
This MOU addresses the rights, benefits and obligations of parties herein.”

(h)    That prior to the execution of Exhibit “B”, the Plaintiff represented to me that it will facilitate my collection of the title documents within Six (6) months of the execution of the MOU; and that this promise induced me to execute the said MOU as I believed the Plaintiff’s to be capable of facilitating and accelerating the process of my completion with the 1st and 2nd Defendants.

(i)    That Seven years down the line the Plaintiff has been unable to fulfill its promise.

(j)    That instead the Plaintiff continues to complicate matters with the 1st – 2nd Defendants by making spurious and baseless allegations such that I am the only sitting tenant till date among such property occupiers in that axis who is yet to receive his title documents even though I have fulfilled the required conditions.

(k)    That to the best of my knowledge information and believe there is no provision for any Trusteeship in the MOU as the Deed of Assignment referred to was obtained by deception as it s obvious that the recitals are untrue particularly paragraphs 5,6 and 7 thereof.

(l)    That I had paid the processing fee to the 2nd Defendant in 2005 long before the Plaintiff’s expression of interest cheque of N5,000,000.00 in 2008.

(m)    That these documents referred to under paragraph 22 of the Plaintiff’s Affidavit in support of the Motion on Notice authorizing the firm of JK Gadzama & Partners to collect the title papers on my behalf were executed because of the representation of the Plaintiff that doing so will expedite the process which has now proved to be incorrect.

(n)    That I did not authorize the filing of Suit FHC/L/CS/5444/2008 said to have been discontinued as I continue to pursue administratively the processing of my title documents with the 1st – 2nd Defendants such that the Hon. Minister of the Environment, Housing and Urban Development visited the property on a working tour as with others on the avenue and assured me that the property will be sold to me as the sitting tenant and not part of any redevelopment plan.

(o)    That I was not part of any petition to the National Assembly.

(p)    That at no time did any “top officials” of other officials of 1st and 2nd Defendants send any emissaries to me with such offer as alleged in paragraph 31 of the Plaintiff’s Affidavit.

(q)    That I am not aware at all of any such threat by officials of the 1st and 2nd Defendants nor the meeting between Okwu Ezezie Esq; of Counsel and Mr. Kola Adeyemi as deposed to in paragraph 32 and 33 of the Plaintiff’s Affidavit.

(r)    That as the sitting Tenant I am the only one to which the 1st and 2nd Defendant’s can issue title documents including letter of offer on 25 Ilabere Avenue, Ikoyi as they are not even parties to the MOU and whoever I instruct to collect it can only do so on my behalf.

(s)    That I have at no time instructed the 1st and 2nd Defendants to issue the letter of offer or any other document of title on 25 Ilabere Avenue, Ikoyi; or any other property to the plaintiff.

(t)    That I verily believe in the circumstance that the 1st – 2nd Defendants will not dispose 25 Ilabere Street, Ikoyi to a stranger nor issue title documents to a stranger as I am the only recognised sitting tenant and still in full and effective occupation.

(u)    That I verily believe that the Plaintiff’s suit is a further attempt to complicate matters and delay the issuance of my title documents by the 1st – 2nd Defendants which has been long overdue.

(v)     That the MOU provides for how any dispute between the Plaintiff and myself shall be resolved as follows:

“DISPUTE RESOLUTION
In the event of dispute, difference, impasse, or deadlock arising in regard to this agreement, the parties shall attempt in good faith too settle such dispute by mutual discussions as soon as practicable after the disputing party gives notice of the dispute to the non disputing party. During such mutual discussions any resolution procedure instituted pursuant to this paragraph shall be pursued by both parties and parties shall thereafter faithfully continue to perform their respective obligations under this agreement.”

(w)    That no settlement attempt has been initiated by the Plaintiff nor explored before rushing to file this suit.

10.    That I swear to the affidavit in good faith believing the same to be true  to the best of my knowledge information and belief and in accordance with the oaths  Act of the Federal  Republic of Nigeria.    



                                ____________________
                                    DEPONENT

Sworn to at the Federal High Court
Registry, Lagos this …….. day
of ………………………… 2015.


BEFORE ME




COMMISSIONER FOR OATHS




IN THE COURT OF APPEAL
HOLDEN AT LAGOS
                                APPEAL NO: CA/L/897M/2013
                                                                    SUIT NO: LD/2727/2000
BETWEEN

1.    ACCESS BANK PLC                -             APPELLANT
Substituted by an order of court
made on 2-5-2012

2.    GLOBAL INVESTMENT & SECURITIES LTD

AND

CROWNWEALTH VENTURES LTD            ……………….          RESPONDENT










S
2.    GLOBAL INVESTMENT & SECURITIES LTD

AND

CROWNWEALTH VENTURES LTD            ……………….          RESPONDENT







APPELLANT’S BRIEF OF ARGUMENT