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Family Sues Bank, Registrar of Titles over Mortgaged Property Â
Akinwale Akintunde
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The Administrators of the Estate of the late Samuel Iyilola Omotoso have sued Ecobank Nigeria Plc and Registrar of Titles, Lagos State over the sale of a landed property situate at 5, Oduduwa Street, GRA Ikeja, Lagos.
In the suit marked Suit No: ID/3967GCMW/17 filed before an Ikeja High Court, the Estate Administrators are contending the propriety of a Mortgage Deed dated August 24, 2001 and registered as No 14 on page 14 in volume 2044 at the Lagos State Land registry in respect of the property upon which a credit facility of N155 million was extended to JNC Limited by Ecobank.
The Estate administrators in the suit, which emanated through Originating Summons filed by Rotimi Aladesanmi are Mrs. Oluwafunmilayo Nwafor, Mrs. Omowumni Olugunja, Mr. Elijah Omotoso and Mr. Emmanuel Omotoso, who are the children of the deceased.
They contended that there was no loan advanced to alleged borrowing company, JNC Ltd by the 1st defendant (Ecobank) pursuant to, or consequent upon the deed of tripartite legal mortgage registered as No. 14 on page 14 in Volume 2044 at the Lagos State Land Registry.Â
According to the claimants, no mount was stated on the deed of tripartite legal mortgage as loan covered by the mortgage, neither is there any date for ‘repayment’ of any loan stated.Â
They are praying the court to determine three issues: whether by virtue of the deed of conveyance registered as No.32 on page 32 in volume 1605 at the Lagos State Lands Registry, Alausa, Ikeja between Adeleke Adedoyin and Samuel Iyiola Omotoso, as well as the Letters of Administration issued in respect of the Estate of Late Samuel Iyiola Omotoso is vested in the claimants.
The claimants also want the court to determine whether by virtue of the letters of administration issued by the Lagos State High Court in respect of the Estate of Late Samuel Iyiola Omotoso and the handwriting analysis of the signature of the deceased on the mortgage deed’s a forgery and whether the said Samuel Iyiola Omotoso was not and could not have been party to the said mortgage deed at all.
Furthermore, the claimants want the court to determine whether the fact that JNC Limited, which is the borrower on the mortgage deed is a legal nonentity and that there was no loan advanced at all before the demise of Samuel Iyiola Omotoso, who was stated to be the guarantor.
Consequently, they are seeking a declaration that the tripartite mortgage deed between Ecobank Nigeria Plc, JNC Limited and Samuel Iyiola Omotoso, is not valid, null and of no effect whatsoever.
They also want an order setting aside the tripartite mortgage in respect of the property as well as an order directing the Registrar of Titles Lagos State (2nd defendant) to forthwith remove from the register the mortgage deed registered as N0 14 on page 14 in volume 2044 at the Lagos State Land Registry, Alausa, Ikeja.
The summon is supported by 17 paragraph affidavit deposed to by one Akpobome Deniran, a legal practitioner with Rotimi Aladesanmi & Co and a written address in support of the motion and exhibits , which included a forensic report examination and comparison of signatures from special fraud unit of the Nigeria Police, Ikoyi, Lagos.Â
Responding to the suit, the defendants in a preliminary objection urged the court to strike out the suit for being fundamentally flawed having been commenced through an originating summons instead of writs of summon.
The defendants stated that the suit lack merit as they were properly in possession of the property by the reason of the tripartite mortgage deed.
The defendants averred that they did not forcibly take possession of the property on November 10, 2016 as deposed by the applicants but that AMCON took possession of the property on March 31, 2016 pursuant to order of court.
They further averred that the deed of legal mortgage entitles AMCON to sell assign, retain possession and occupy the land, the subject matter of the mortgage.
“The true position of events is that late Samuel Iyiola Omotoso was the initial owner of the property at No. 5 Oduduwa Street, GRA, Ikeja, Lagos whose titled is registered as No. 32 on page 32 in Volume 1605 at the Land Registry.
“That the 1st defendant (Ecobank) granted several facilities to JNC Limited which were secured with a. Deed of Legal Mortgage dated 24th August, 2011 and entered between the 1st defendant and Mr. Samuel Iyiola Omotoso over the property at No. 5 Oduduwa Street, GRA, Ikeja, Lagos and subsequently registered as No. 14, Page 14, Volume 2044 of the Lagos State Land Registry at Alausa, Lagos.
“That the Deed of Legal Mortgage was executed by the parties in February, 2009 but the Deed was registered in 2011 during the perfection process to meet the registry requirement since the date on the mortgage forms should not be backdated.
“That upon the expiration of the facility granted by the 1st defendant, JNC Ltd defaulted in its obligations towards the 1st defendant.
“That following the inability of the sad JNC Ltd to meet the repayment terms of the facilities granted to it, the loan was sold and assigned to the Assets Management Corporation (AMCON) via a Loan Purchase & Limited Servicing Agreement dated 6th April, 2011”, Ecobank averred.Â
According to the defendant, Section 44 of the Constitution does not apply to land taken possession of based on a mortgage.
They also averred that there is a loan purchase agreement between AMCON and Ecobank Plc in respect of JNC Limited account and many other accounts.
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