Building collapses are not uncommon around the world. Many countries, including USA, have had their fair share of failures which have resulted in the collapse of buildings. Recently, on June 24, 2021, a 12-storey beachfront condominium complex in Miami partially collapsed, leaving 98 people dead. On November 1, 2021, one of the three high-rise buildings in the 360 Degrees Towers Complex located at 44, Gerrard Road, Ikoyi, Lagos fell down like a pack of cards claiming 46 lives. What really happened? Putting conspiracy theories aside, Olawunmi Alade and Oghenekevwe Ibodje, Aderemi Fagbemi and Bayo Owojori tackle the legal and regulatory issues arising from the monumental disaster from which the nation is yet to come terms with
Ikoyi Building Collapse: Challenges of Building Construction, Regulation and Protection
On November 1, 2021, one block of an under-construction 21-floor luxury apartment building located in the highbrow Ikoyi area of Lagos State collapsed, taking with it tens of innocent lives. The collapse of the building has the whole city talking, and stakeholders scrambling to understand what exactly happened on the fateful day.
All over the world, building collapse is not new. In June 2021, a beachfront condominium in Miami collapsed killing 98 people. An apartment building in Cairo also collapsed, killing 25 people. Building collapse could be as a result of wide-ranging "acts of God" like earthquakes, hurricanes, flood and landslides. However, human factors such as negligence, flouting of building codes, use of defective or substandard materials, incompetence and corruption are also factors resulting in building collapse. Such factors account for the preponderance of collapses in Nigeria. It is why we need to pay close attention to building regulations, laws and codes in Lagos and in Nigeria at large.
The real estate sector in Nigeria is a vibrant one, growing in leaps and bounds. According to the Bureau of Statistics, this sector recorded a 3.9% growth in Q2 of 2021 as compared with 1.8% in Q1 and -22% in Q2 of 2020. This represents its best performance in the preceding six years. The growth in this sector has translated into increased and easier housing for citizens, and asset diversification for investors.
Framework for Construction and Real Estate Development in Nigeria
The right to own property in Nigeria is guaranteed by the 1999 Constitution of the Federal Republic of Nigeria (as amended) ("CFRN"). This right is modified by the Land Use Act 1978 ("LUA") which vests all urban lands comprised in the territory of each State (except those vested in the Federal Government or its Agencies) solely in the Governor of the State, to hold in trust for the people and to allocate to individuals and organisations for residential or other uses. Given this proviso, the highest level of interest that can be held in land is a mere right of occupancy (NWOKOCHA v GOVERNOR OF ANAMBRA STATE). Thus, a person seeking to develop real estate must first acquire land in accordance with the LUA, and obtain the relevant permits under the applicable laws.
In addition to the LUA and the CFRN, the major State laws on property development include the following:
1. The Lagos State Urban and Regional Planning and Development Law 2010
The Lagos State Urban and Regional Planning and Development Law regulates the administration of physical planning, urban development, urban regeneration and building control in Lagos State. This law recognises the Lagos State Ministry of Urban and Regional Planning, as the apex regulator of planning and property development in Lagos State. Other administrative agencies established under this law include (i) the Lagos State Planning Permit Authority ("Planning Permit Authority"), (ii) The Lagos State Building Control Agency ("Building Control Agency") and (iii) The Lagos State Urban Renewal Agency ("Renewal Agency").
2. Lagos State Physical Permit Regulations 2019
The Planning Permit Authority is empowered to enforce these Regulations, in accordance with its mandate to issue planning permits to developers and builders for any form of physical development and construction on any land in Lagos State. A 'Planning Permit' is an approval or assent given for the time being to a development, and includes layout or subdivision plan and building control authorisations given at construction and post-construction stages.
The Planning Permit Authority may revoke planning permits where (i) the developer or owner of the planning permit has developed in excess of the approval granted, or has not complied with the terms and conditions under which the permit was granted; or (ii) the permitted development or use has been modified, altered, varied, added to, or renovated without permit.
The Regulations provide that where any person develops beyond the limit prescribed in a Planning Permit, it is an offence, and such person may apply for a fresh permit within 21 days of being served an enforcement notice, and an application for regularisation must be made to the Planning Permit Authority within the same timeframe.
It is an offence for a public officer to encourage or conspire with members of the public, to violate the provisions of the Regulation.
3. Lagos State Building Control Agency Regulations 2019
The Building Control Agency is responsible for enforcing these Regulations, which begin to apply from the commencement of construction activities on site till completion of the project. The Building Control Agency is required to conduct periodic inspection of building developments within the State, to identify defective and distressed structures, and has the power to demolish buildings that do not conform with the Regulations and Planning Permits.
Prior to commencing building construction, real estate developers are required under this regulation to notify the Building Control Agency of such intention to commence construction, and the notice must be accompanied by a Planning Permit and a General Contractors' All Risk (CAR) Insurance Policy for buildings above two floors, amongst others. The Developer must ensure that a project site board is erected at the construction site, showing the Planning Permit number, title of the project, names and addresses of the professionals and consultants of the project, name and address of the main contractor and number of floors.
The developer is required to engage qualified professionals to be always present on site, to supervise every aspect of construction. In this regard, the supervisors are to ensure that quality materials and clean water is used during construction, to minimise structural defects and consequent collapse. The responsibilities of the developer under the Regulations include:
(a)Ensuring that the building is certified by the appropriate professional at every stage of construction;
(b)Carrying out comprehensive tests on concrete cubes, reinforcement and other materials as may be deemed necessary, and the result must be submitted to the Building Control Agency at every stage of the building construction;
(c)Carry out the authorised work, and to notify the Building Control Agency in writing that such work is ready for inspection; and
(d)Report collapsed structures to the nearest office of the Building Control Agency within 24 hours of such collapse, stating the cause and extent of damage to the adjoining properties.
Under the regulations, any structural development which is at variance with a planning permit is deemed illegal, and the Developer is required to remove such variations within 21 days of receiving notice of illegal structural development. Failure to comply with such notice, is a ground for sealing off the property and subsequent demolition by the Building Control Agency.
4. Environmental Impact Assessment Act 1992
The Environmental Impact Assessment Act requires Developers to conduct environmental impact assessments, in respect of public and private projects. The Lagos State Government maintains a mandatory policy, which requires contractors to secure an Environmental Impact Assessment (EIA) report before embarking on projects in the State. This would ensure the optimum safety of residents of the areas, where the projects would be carried out.
Notably, Section 64 (1) of the Insurance Act, (Cap. I 17, LFN, 2004) ("Insurance Act") provides for the insurance of a building under construction. The section provides that:
"No person shall cause to be constructed any building of more than two floors, without insuring with a registered insurer his liability in respect of construction risks caused by his negligence or the negligence of his servants, agents or consultants which may result in bodily injury or loss of life to or damage to property of any workman on the site or of any member of the public".
Further, Section 65 (1) of the Insurance Act makes it mandatory to insure every public building against the hazards of collapse, fire, earthquake, storm and flood.
The existence of the State building codes and regulations even though not perfect should ordinarily suffice, but the lack of compliance on the part of developers and non-enforcement by the government agencies in charge of construction, is one of the major challenges faced by this sector. Lack of compliance with set laws and standards, employing unskilled workers and use of sub-standard materials, corruption and negligence are contributories to poor structural integrity and incidental building collapse.
It does appear to be prudent practice on the part of the government agencies to encourage compliance with the established building rules rather than compromise.
The Position of an Off-taker
Following the event of the collapse of a building, where persons have fully paid or made monetary commitment on the collapsed building under construction, this implies that money has been lost. The question then, is what happens to the obligations of the developer in relation to the off-takers or buyers? This will largely be dependent on the nature of the transaction/contractual agreement between parties. However, the off-taker or buyer can bring a legal claim for negligence, breach of contract, breach of warranty, or strict liability as the case may be and depending on the type of insurance policy, proceeds from the claims of an insurance cover.
Government agencies in charge of building construction must be stringent and uncompromising, in enforcing compliance to existing laws. These agencies must be held accountable and sanctioned for any act of negligence or corrupt practices on their part that may have led to or lead to poor building standards, defects in building structure and/or building collapse.
For the developers, there must be graver consequences meted out to them for the flouting of regulations. Criminal and civil proceedings can be brought against them. Developers should be deterred from the practice of compromising quality, in order to maximise profit.
Also, with the current realities, the need for investors, builders and buyers to engage professionals in property development, cannot be over-stressed. No longer should any of the parties be eager to discard the services of architects, engineers, estate surveyors, Lawyers etc, when making decisions on building or buying.
There exist some laws and insurance policies in developed countries which help to protect the off-takers, and keep the developer liable for the construction of a building for a specific number of years. An example of such is the Builder's Legal Liability (BLL) Act and the Inherent Defect Insurance (IDI). The BLL provides that the builder is liable for the building constructed by him for a specific period, typically for 10 years. Any factor that would make the building unfit for use, like use of low quality material, incorrect use of materials, faulty design, poor workmanship or any defect, would be on the developer's hands. But, such a law will prove futile if the builder disappears, or lacks any financial resources to correct the defects. In such cases the IDI comes into play, covering the cost of rectification or reconstruction if any structural defect occurs. Unfortunately, these are not present in our country.
The real estate sector has been a major economic booster; the setback in mode of practice, provision of Acts and regulatory and enforceability of same notwithstanding. The practice of property development through real estate developers/contractors is the norm in developed parts of the world, which in turn has immensely contributed to development of infrastructure, commerce and easy housing for its citizens. Therefore, the recent happenings without making light of its high effects on loss of lives and resources, should not be allowed to discourage stakeholders or make light the progress the sector has achieved. Rather, the recommendations stated above together with the global best practices, should be encouraged and emulated.
Olawunmi Alade and Oghenekevwe Ibodje, Senior Associates, Detail Commercial Solicitors
Regulation of Construction and Building Projects in Nigeria - Inadequate or Unenforced? A Case Study of Lagos State
The recent collapse of a 21-storey building on Gerard Road, Ikoyi area of Lagos State and the consequent loss of precious lives in that debacle, has once again brought to fore the persisting unresolved issues plaguing the built environment sector in Nigeria, and the inadequacy of existing measures put in place to safeguard the life and property of citizens. Over the past two decades, the number of collapsed buildings in Lagos State alone has risen to worrisome levels, and this once again raises the question of whether Nigeria is behind in enacting adequate laws to regulate this crucial sector, or whether adequacy is not the problem but rather, that the laws are more honoured in their breach than in their observance.
Despite Nigeria's huge housing deficit, and the need to encourage foreign direct investment into the built environment sector, investors and citizens continue to encounter various challenges in obtaining building permits from regulators. A four-year assessment of business regulations by the World Bank around the 36 Nigerian States and FCT Abuja in four regulatory areas including dealing with construction permits, discloses Kaduna, Enugu, Abia, Lagos and Anambra as States showing the largest advancement toward the global good practice frontier. The assessment ranked Lagos the least State in dealing with construction permits, as investors and developers have to go through 17 procedures to obtain permit which is estimated to take about 118 days.
In 2017, this writer was privileged to be a member of the Construction Permits Working Group which participated in compiling an Enabling Business Report on the Nigerian Business Climate, a project of the Steering Committee of the Presidential Enabling Business Environment Council & an NBA-SBL Collaboration. Sadly, the same issues identified in the Report then, continue to plague the sector, and it seems there is no respite in sight.
The World Bank's Doing Business indicator has a building quality control index that evaluates as a prototype, the time, and costs of the permitting process of building a warehouse, transparency of processes, quality of building regulations, the strength of quality control and safety mechanisms, liability and insurance regimes, and professional certification requirements. Permitting Processes are regarded as important, because delays in obtaining a building permit, particularly with planning approvals, can create adverse effects on a building project and can lead developers to abandon otherwise viable investments. In many instances, it may also cause builders to choose to bribe building officials for a "fast-track" permit or resort to building informally, which can lead to poor compliance with standards and increased risks to lives, as well as loss of critical infrastructure.
Good permitting practices are regarded as those which ensure that building quality control and safety mechanisms are in place, set rules and ensure that they are clear and coherent, use one-stop shops to improve coordination, and differentiate projects by risks. At the moment, most of the nation's permitting processes fall below these standards.
Building Regulation in Nigeria
The National Building Code 2006, was first initiated by the National Council on Housing and Urban Development which deemed the Code necessary to halt the ugly trend of perennial building collapse in the built environment sector, and promote integrity of building projects and qualitative housing for every Nigerian. The Code makes provision for the administration of the entire building process, and implored State Governments in Nigeria to integrate its provisions into their local laws, particularly those relating to Design, Construction and Maintenance (Post Construction), and efficiently monitor its implementation.
Aside from the industry concern that the Code is obsolete, which has in recent years been looked into, one of the major issues has always been the fact that the Code is only applicable in States where the State Government chose to integrate the provisions of the Code into their local laws. Lagos is one of those States which has integrated the Code into its construction permitting processes, and as the commercial nerve centre of the country, our discourse will focus on Lagos State's building and construction permitting processes.
Lagos State Building Regulation and Permitting Process
With the plethora of reform guidelines issued by international institutions such as the World Bank and examples from other jurisdictions that have been able to effectively regulate their built environment sector, as well as recommendations from Commissions set up in the past to look into the issue, has Lagos State, which is lauded as a pacesetter State in Nigeria, been able to implement standardised good practices in its construction sector in a manner that ensures a high level of regulatory compliance with planning and building code requirements, and improve the outcome of industry practitioners' interactions with regulatory agencies in the permitting process? The obvious answer is of course in the negative. Building collapse (of both old and new structures) continues to be a reoccurring decimal in the State, notwithstanding the regulatory policies on building construction and the establishment of agencies for the monitoring of building development from its design stage through the various stages of construction to completion. A brief review of extant enforcement and building control regulations in Lagos State, clearly indicates that the problem is not inadequacy of relevant laws and monitoring agencies, but rather, lack of proper enforcement of building regulations either due to corruption on the part of the enforcement agencies or inexperience, lack of capacity and industry knowledge amongst agency officials, infrastructural deficit, and lack of adequate monitoring mechanisms amongst others.
Extant Statutory Provisions in Lagos State
Aside from the Lagos State Urban and Regional Planning and Development Law 2010, established to provide for the administration of physical planning, urban development, urban regeneration, building control and other connected purposes (the "Planning Law"), which established relevant Physical Planning and Development Agencies that would play crucial roles in the execution of the provisions of the law, a very significant establishment of the Planning Law is the Lagos State Physical Planning Permit Authority ("LASPPPA"), established for processing and issuance of Planning Permit in the State and ensuring compliance with planning approval standards, and the Lagos State Building Control Agency ("LASBCA"), established as a necessary measure to combat lapses in building projects in Lagos State, by enforcing building control regulations and implementing the Planning Law.
Recently, LASBCA Regulations 2019 (the "Regulations") was released, and it sets out the procedures for obtaining authorisation of LASBCA and LASPPPA for commencement of construction, building stage certification, certificate of worthiness for electrical, mechanical elements and fire safety before occupation of high-rise buildings and, a certificate of completion and fitness for habitation amongst others. There is also the Building Control and Stage Certification Process Law, the Building and Civil Engineering (Construction) Materials Quality Control Laboratory Law, the Model City Plans Approval Orders, Operative Development Plans, Operative Approval Orders on Approved Layout Plans, as well as other bodies such as the Lagos State Urban Renewal Agency ("LASURA") for clearance for urban renewal sites, LASURA- Inspectorate & Quality Control Department - for stage Certification and Habitation for Fitness, Lagos State Material Testing Laboratory-for Building Material and Equipment Testing, Lands Bureau - for Clearance on Land allocation and associated clearances. Thrown into the mix also, is the need to obtain tax clearance from Lagos State Internal Revenue Services. In addition, there are other MDAs involved in the permitting and certification process such as the Ministry of Environment - for Drainage Clearance, Ministry of Transportation - for Traffic and Transportation Clearance, Waterfront and Infrastructure Development Agency - clearance from water bodies, Ministry of Agriculture - clearance for agricultural lands where applicable.
Is the Multiplicity of laws and enforcement agencies a good thing?
The reality is that multiplicity of agencies dealing with different levels of the permit process can create unwanted bottlenecks, notwithstanding the efforts made by Government to make all relevant information and required permitting processes available on a single platform. There is, therefore, need for streamlining of processes and collaboration between agencies, and stripping off some layers of approvals to reduce processing time and bureaucracy. Considering the limitations of these agencies in carrying out their functions, it is important that they collaborate with approved private building practitioners to assist in the permits and inspection process and stage certifications to reduce workload, delays, and bottlenecks. The process should be clearly thought out and would involve some form of certification and accreditation process for the professionals beyond registration with relevant professional bodies, as well as imposition of accountability and liability obligations. Such professional consultants may be retained by Government, or be contracted by the developers directly from a list of approved, accredited professionals or agencies, with requisite checks and balances and enforcement of higher mandatory professional standards including the enforcement of adequate insurance coverage. The agencies themselves should be required to undergo periodic rigorous trainings, to keep them up to date and informed.
Accessibility of Building Regulations
Lagos State has embraced the use of technology, in disseminating information. The Planning Permit Authority has established an online presence in an attempt to provide access to regulations, permit and certification requirements, stages of approval/ procedure for grant of Permit, as well as availability of electronic application system. This however, needs to be fine-tuned for greater effectiveness. The permitting/inspection/certification processes need to be reduced and simplified to encourage developers, and there is a need to discontinue physical/paper applications, in order to reduce the avenues for corrupt practices. The Government can take a cue from successful systems from other jurisdictions, such as Singapore's CORENET. An effective, unified Building Guidelines/Regulation, should capture all the provisions for an Online Single Window System for complete process: building plan approval, stage level inspection etc. The system should be sophisticated enough to issue online building plan approvals with digital signature, in downloadable format. There should be established a One Stop Shop for all the building stages with collaboration between relevant MDAs, thus, improving administrative efficiency, transparency, and cost management.
Regulatory Controls Exercised Before, During and after a Building Project
Section 5(1) of the Regulation mandates developers to request authorisation from LASBCA to commence construction, in the manner provided under Schedule 2 of the Regulation. The developer is required to keep on site a copy of the Planning Permit granted, for sighting upon demand by officers of the agency. To ensure building quality control following the issuance of a permit and an authorisation to commence construction, Section 11(1) & (2) of the Regulation provides that the Agency shall monitor the use of certified professionals and artisans in construction sites, and to ensure compliance, the Agency is authorised to request any professional or artisan working on a construction site in the State, to show evidence of registration with their respective professional bodies and/or the Lagos State Government.
The law also demands the display of details of the permit granted by LASPPPA using a project site board erected at the construction site, which shows the planning permit number, title of project, names and addresses of the professionals/consultants appointed for the project, name and address of main contractor, number of floors approved, inclusive of the ground floor, project duration, safety and health coordinator, and quality control consultant (where applicable). Developers are also required to obtain a Stage Certification, upon the conclusion of each stage of building construction. Additionally, every developer is required to obtain from the agency, a Certificate of Completion and Fitness for Habitation. The Certificate shall be issued upon an assessment of satisfactory completion, and where a defect is observed or an alteration made, the Certificate issued may be withdrawn or revalidated.
Buildings under construction are also required to undergo material evaluation and testing, and developers are required to carry out a structural integrity test upon conclusion of the building project in authorised centres of the agency, prior to the grant of the Certificate of Completion and Fitness for Habitation. The Certificate is to be issued upon the submission of the pictures of all elevations of the building, Electrical Certification, Gas Certification, Mechanical Certification, Fire Safety Certification, Insurance Policy on the building, and a Letter of indemnity obtained from all relevant professionals (Architect, Builders and Structural Engineers). Where any of these requirements are not adhered to, the agency has power to issue different notices including a Contravention Notice, Stop Work Order, Quit Notice, Seal Off Order, Demand Notice, Regularisation Notice, and a Demolition Notice.
Clearly, these requirements are not strictly adhered to, and in the writer's view, aside from monitoring constraints experienced due to lack of proper data on all construction works embarked upon in the State, the major culprit for non-compliance is corruption. Using the collapsed Ikoyi building as a case in point, if the officials of the relevant agencies had done their work conscientiously, the building should not have been raised to the level it was, when the collapse happened. To combat this, there is the need to adopt an automated system that publishes information online, including the application processes, the permitting approval processes, with e-signatures of the approving officers, for accountability purposes.
Liability for Defects and Regulatory Requirement for Insurance
Where a development is above two floors, the developer is required to obtain a Contractors' All Risk Insurance Policy and Building Insurance Certificate. Where a structural defect is observed, or the building fails due to negligence leading to collapse, the law holds the developer liable, including the Civil Engineer/Structural/Mechanical, the Builder, and the Architect who participated in the development of the building structure. Section 43(1) - (19) also provides for penalties where a developer commits offences such as, failure to obtain permission before commencement of construction work, giving of false information to the Agency, failure to insure building, proceeding to another stage of development without obtaining stage certification, failure to obtain certificate of completion and fitness for habitation before occupation, failure to comply with fire requirements, amongst others.
Based on the foregoing, it is clear that lack of adherence to laid down laws by developers with or without the complicity of enforcement agencies and the inefficiency of these agencies are some of the major problems experienced by the State, rather than inadequacy of regulation or enforcement provisions. The State Government needs to urgently take things in hand. Beyond the efforts already made to improve the permitting processes, decisive steps must be taken to clean up the Agencies, and implement recommended measures for transparency and accountability in its processes. There is also an urgent need for public awareness of regulatory requirements for buildings, which calls for public action including the demand for transparency from developers and landlords by occupiers and purchasers of properties. Adequate transparency would be evidenced by a disclosure of requisite approvals, and a whistle blowing policy which rewards exposure of erring developers and State officials.
Aderemi Fagbemi, Partner, Tope Adebayo LLP; Secretary, Construction Projects and Infrastructure Committee of the Nigerian Bar Association Section on Business Law ((NBA-SBL)
Collapsed Ikoyi Building: Legal Rights, Duties, Liabilities and Remedies for Victims, Developer and Built-Industry Professionals
The incident of the collapsed 21-storey building in the high-brow residential area of Ikoyi, Lagos, Nigeria has once again raised issues of rights, obligations, liabilities, and remedies for stakeholders in the construction and infrastructural industry whenever such tragic event, with its concomitant loss of lives and properties occurs in Nigeria. Without prejudice to the outcome of the Investigative Panel set up by the State Government, this paper examines the duties of the developer, the professionals who supervised the building construction, regulatory bodies, the legal rights of the victims, liabilities of the industry participants and available remedies as provided under the extant laws in Nigeria. The opinions expressed in this paper are that of the writer and do not in any way represent the opinion of the NBA- SBL.
Legal Framework for Physical Planning and Development in Lagos State
Section 4(7) of the 1999 Constitution (as amended) empowers the House of Assembly of a State to make laws for the peace, order and good government of the State or any part of it, with respect to any matter not included in the Exclusive Legislative List (ELL), set out in Part I of the Second Schedule to the Constitution, any matter in the Concurrent Legislative List (CLL), set out in the First column of Part II of the Second Schedule to the Constitution, and any other matter with respect to which it is empowered to make laws in accordance with the provisions of the Constitution.
In other words, a State has constitutional power to make laws on any matter not included in the ELL and CLL - Residual List. One of such legislative areas for the States, is urban and physical development. The power to make laws for physical planning and urban development in Nigeria resides in the State Houses of Assembly, which gives validity to the Lagos State Urban and Regional Planning and Development Law, 2015, CAP U2 (URPD Law). Section 24 and 45 of the Law establish the Lagos State Physical Planning Permit Authority - (the "Planning Permit Authority") and the Lagos State Building Control Agency (the "Building Control Agency") respectively. Pursuant to section 99 of the Law, the Lagos State Physical Planning Permit (LASPPPA) Regulations (2019) and the Lagos State Building Control Agency (LABSCA) Regulations (2019) were made by the Lagos State Commissioner for Physical Planning and Urban Development, and approved by the State House of Assembly. It goes without saying therefore, that the above cited Law and the Regulations are the extant legal frameworks for physical and urban development in Lagos State, moreover when Section 101 of the Law has specifically repealed the previous physical planning Laws in the state before it; that is -
i. The Lagos State Urban Renewal Board Law No. 7 of 1991 Cap . L53 L.L.S 2003;
ii. The Lagos State Urban and Regional Planning and Development Law, No. 9 of 2005;
iii. The Lagos State Urban and Regional Planning Board Law , No. 2 of 1998, LLS, and
iv. The Lagos State Planning Commission Law. L.38 L.L.S 2003.
In addition to the above-mentioned Law and Regulations, Insurance Act, 2015 and Professional Regulatory Bodies' Establishment Acts are important legal frameworks, which have the objective of ensuring that safe and sustainable buildings are achievable in Nigeria and in Lagos State in Particular.
Lagos State URPD Law 2015, LASPPPA Regulations 2019 and LABSCA Regulations 2019.
Prior to the tragic incident of the collapsed 21-storey building on Gerrard Road in Ikoyi on 1st of November, 2021, building collapse has been a recurring phenomenon in different parts of the country, especially in Lagos State. The collapse of the Synagogue Church Guest House in 2014 in Ikotun-Egbe area of Lagos State where 116 people lost their lives, including 84 South Africans; the collapse of a six-storey building under construction by Lekki Gardens in 2016 in Lekki area of the State which took the lives of 34 people; and the collapse of a five-storey building in 2019 at No. 63, Massey Street, Ita-Faaji area of Lagos State where over 20 people, including no fewer than 12 school pupils died, while 45 people were reported to have sustained various injuries, are still fresh in our memory. The above- mentioned tragic incidences threw up many legal issues on the rights, duties, obligations and liabilities of the different interests that were involved which have remained unsettled.
Consequent upon the collapse of No. 63, Massey Street, the State Government set up a Five-Man Investigative Panel to unravel the immediate and remote causes of the unfortunate incident, with a view to putting an end to building collapse in the State. The report of the investigation submitted and the recommendations made, motivated the State Commissioner for Physical Planning and Urban Development, pursuant to his power under Section 99 of the URPD Law 2015 to make the LASPPPA Regulations 2019 and the LABSCA Regulations 2019, for the purpose of carrying into effect the provisions of the Principal Law. The Law and the Regulations make far-reaching provisions for safe and sustainable physical and urban development in the State, which, if they had been complied with by the developer, the professionals involved and the regulatory Agencies, the unfortunate and catastrophic incident of the collapsed 21-storey building in Ikoyi would not have happened.
Functions and Obligations of the Physical Planning Permit Authority
LASPPPA and LABSCA have statutory obligations to ensure that developers and construction professionals in the State comply with the provisions of the law at every stage of all building construction projects, from the design stage to construction stage, and up to post - construction stage.
Each stage of the development from foundation till the completion of the project, must comply with the provisions of the law and its regulations. The cumulative of the stage certifications are to be submitted to the Agency by every developer which shall thereafter be evaluated, for the grant of a Certificate of Completion and Fitness for Habitation, which must be obtained on any building on satisfactory completion before occupation. It is important to emphasise that the issuance of the Certificate, is conditional upon satisfactory completion of the building construction and that Application for it must be accompanied with, among other stipulations- Insurance Policy on the building and Letter of Indemnity from all relevant professionals (Architect, Builders and Structural Engineers) who were involved in the project.
Power of the Agency to Issue and Enforce Statutory Notices
The Agency has power to serve any of the enforcement statutory notices prescribed in Schedules 14- 20 of the Regulations which include- Contravention Notices, Stop Work Order, Quit Notice, Seal Off Order; Demand Notice, Regularisation Notice, and Demolition Notice. Where any of the provisions of the law or any Regulation made pursuant to it is contravened, depending on the nature and degree of contravention, the relevant Agency has power to order the developer to submit an application for planning permit and building control authorisation; or carry out such alterations to the building as may be necessary to ensure compliance; or pull down the building, or reinstate the land to its prior state.
Where a structure is defective and poses danger or constitutes a nuisance to the occupier or the public, the Building Control Agency has the duty and powers to serve on the developer or holder for the time being of a planning permit, a demolition notice which shall contain a date not later than 21 days after which the Building Control Agency shall take steps to commence demolition of the defective structure at the expiration of the time given, and the owner or developer of the structure shall pay to the State Government the cost of the demolition, and failure to pay the cost of the demolition shall cause the property to be forfeited to the State Government.
Obligations/Responsibilities of Developers under the Law
Every developer, be it an individual, a corporate Body, Federal, State or Local Government or their agencies intending to carry out any development in Lagos State is under obligation to apply to the LASPPPA for a grant of Planning Permit. The application must among other requirements, include all architectural and engineering design drawings as stipulated in the Law, a letter of indemnity from a Civil/Structural Engineer undertaking to supervise the proposed construction, which must be sealed and stamped by him, and a report of sub-soil investigation in the case of structures more than two floors and all developments in areas with low bearing capacity soil in the State.
Regulation 22 of LABSCA stipulates the responsibilities of the Developer to include among others - "(1)(a) - to ensure that the building is certified by the appropriate professionals as specified in Schedules 5 to 10 to the Regulations at every stage of construction, without prejudice to the inspection of the project at every stage of construction by the Building Control Agency". It is worthy of being emphasised here that, Schedules 5 to 10 require each stage of building construction to be certified by a Registered Architect, a Registered Civil/Structural Engineer, and a Registered Builder, with their stamps and seals affixed to the Compliance Forms; and where the Law requires involvement of a Mechanical and an Electrical Engineer on any project, a Mechanical and an Electrical Engineer must also in addition to the three professionals earlier mentioned, sign the Compliance Forms as required. "(1)(b) to carry out mandatory tests on building materials and concrete cubes and submit the results to LABSCA at every stage of the construction; (1) (c) Notify the Agency in writing whenever a work is ready for inspection; ... ... ... .. (1)(i) comply with health and safety standards at all times".
A developer who has been granted Planning Permit has obligation to inform the Agency of his intention to commence construction works and submit to the Agency the under-listed documents - (ix) which are:
"(i) Planning Permit
(ii) Sub-soil Investigation Report (buildings above 4floors);
(iii) Sanitary Inspection and Disinfestation Report (by a Licensed Environmental health Officer);
(iv) Design Drawings
(v) General Contractor All Risk Insurance Policy (buildings above 2 floors);
(vi) Letter of undertaking of supervision by professionals involved.
(vii) Programme of Works in 5 copies of -
a) Builder's site execution document; (sic)
b) Construction methodology;
c) Construction of programmes;
d) Project quality management.
(viii) - Health, Safety and Environment Report
(ix) - Any other report as may be required.
The above requirements are mandatory, and the Agency does not have any discretionary power to alter, reduce or modify them.
Insurance Obligation, Entitlements and Liabilities
Section 64 of the Insurance Act, 2015 imposes obligation on every developer of a building of more than two floors, before embarking on the construction, to insure his liability "in respect of construction risks that may be caused by his negligence or the negligence of his servants, agents or consultants which may result in bodily injury or loss of life to or damage to property of any workman on the site or of any member of the public". This provision is relevant to buildings under construction only, and its contravention is an offence which upon conviction, renders the contractor liable to a fine of N250,000 or imprisonment for three years or both. This legal obligation on the developer is also provided for by the Lagos State URPD Law 2015. The developer or owner of such building must submit to LABSCA at the time of submitting application to commence building works, a General Contractors All Risk Insurance Policy Certificate, and the Certificate must be produced on demand to LABSCA for verification on an annual basis. Failure to insure a building as required under the Law, is an offence punishable upon conviction to a fine not exceeding N500,000 or one month community service or both. It is the opinion of this writer that the penalties attached to breach of this important provision of the Law is too low, and may not discourage contravention of the Law.
Implication of the Law
The implication of the provisions of the laws cited above, is that individual and families of those who lost their lives and properties in the collapsed 21-storey building, would be entitled to compensation as the Laws have mandated builders and developers to obtain insurance covers as a prerequisite to getting approval for their building construction. The insurance policy would also be expected to cover third parties, arising from the collapsed building. Consequently, if the developer of the collapsed building had complied with this provision of the Law, it is expected that the insurance companies with which the building was insured should have been involved in the monitoring of the construction of the building, knowing fully well the financial obligation that the collapse would cost them.
Requirement of Project Site Board
In order to ensure that the identities of the professionals involved on any building construction site are made public and for the purpose of holding such professional(s) responsible for their actions on the project, LABSCA makes it obligatory that a project site board is erected at the construction site which must show the relevant details of the Project and the Professionals involved in it.
Without prejudice to the outcome of the on-going investigative panel, the developer of collapsed building clearly violated this provision of the Law, as can be seen that the site project board does not have the mandatory information on it.
Professional Regulatory Bodies' Establishment Acts
Pursuant to Item 49 of the Exclusive Legislative List, Second Schedule of the Constitution which empowers the National Assembly to make laws on professional occupation in Nigeria, the following professional bodies are recognised in the built-industry-
1. The Architects Registration Council of Nigeria (ARCON) Act
2. Council for the Regulation of Engineering in Nigeria (COREN)
3. Council of Registered Builders of Nigeria (CORBON)
4. Town Planners Registration Council of Nigeria (TOPREC) Act
5. Surveyor Registration Council of Nigeria (SURCON)
6. Estate Surveyors and Valuers Registration Board of Nigeria, (ESVRBON)
7. Quantity Surveyor Registration Board of Nigeria QSRBON.
However, only registered members of the first five of the professional bodies listed above, are considered appropriate to practice in the Nigeria Construction industry. The reason for this may be because, only members of the first five regulatory bodies have 'direct relevance' in the delivery of a safe building. Each of these professional bodies sets both ethical and practicing competence standards for their members, in accordance with their Establishment Acts.
All the Professional Regulatory Bodies mentioned above have different provisions in their Laws, which give them powers to set standards for their members and to monitor and control the practices of their areas of specialisations as established by Laws and also to check quackery in their professions. For example, Section 19(1) of the Builders (Registration, etc,) Act CAP. B13 LFN2004 provides that: "Any person who not being a registered builder- (a) for or in expectation of reward, practices or holds himself out to practice as such; or (b) without reasonable excuse, takes or uses any name, title, addition or description implying that he is authorised by law to practice as a registered builder, commits an offence punishable under this Decree". Furthermore, these Professional Bodies have statutory duties to keep and maintain up-to-date registers of their members, and to punish unprofessional conducts by erring members. It was therefore, expected that the professional bodies highlighted above should have played active roles in the supervision and monitoring of their members engaged on the collapsed building, if such professionals were engaged as required by the laws.
Consequence of a Collapsed Building or Structure
In circumstances where there is a collapse of any property or structure within the State, due to negligence on the part of the owner or the developer which has been established through investigation or publication in the State Official Gazette, such property may be forfeited to the State Government. Section 74 of URPD Law 2015. Section 75 of the Law and Regulation 43 of the LABSCA Regulations, stipulate different offences and penalties, ranging from a fine of N250,000 to N500,000 against violation of the provisions of the Law and the Regulations by any person. It is to be noted that, reference to "any person" under Section 75 of the Law includes an owner, his servants, agents or privies, a developer, an independent contractor, Architect, Engineer or Builder, and each of these persons who knowingly participated in contravening the provisions of the Law or any Regulation made under it.
Whenever there is a breach of legal right, there are usually remedies provided by law to assuage the injured persons or parties, as the case may be. While the different laws highlighted above have various penalties against offenders and violators of the provisions of the laws which become offences against the State where they are established, victims of the collapsed building and their relatives may also have remedies in negligence against the Developer and Lagos State Government, for breaches of their legal duties of care which resulted in fatal injuries and emotional trauma. Furthermore, as earlier pointed out, the individual and families of those who lost their lives and property in the collapsed 21-storey building, would be entitled to compensation under the Insurance Act 2015 and Section 48 of URPD Law 2015. The insurance policy would also be expected to cover third parties, arising from the collapsed building.
The incidence of the collapsed 21-storey building on Gerrard Road, Ikoyi, Lagos was another avoidable tragic incident. Without prejudice to the outcome of the investigative panel constituted by the State Governor to unravel the causes of the collapse, a cursory examination of the extant laws available for the monitoring, controlling and enforcement of the physical planning and development in the State, shows that there is enough legislative framework to achieve safe and sustainable buildings in Nigeria in general, and in Lagos State in particular. The will to comply with the provisions of the relevant laws by all stakeholders in the built industry and to enforce the laws by the Government is desirable, and cannot ≥be overemphasised if the ugly incidences of building collapse is to be ended in Nigeria.
Bayo Owojori, Specialises in Construction and Real Estate Law