There are two appeals against the judgment of the Court of Appeal, Lagos Division ('the Court below' for short) delivered on 22nd July, 1998. The main appeal is against the affirmation by the Court below of the decision of the trial Court and the dismissal of the Appellant/cross-Respondent's appeal. The cross-appeal by the 1st Respondent is against the failure of Court below to consider the cross-Apellant's brief of argument for the hearing and determination of its cross-appeal against the decision of the trial Court which awarded the sum of N75,000:00 as general damages to the Appellant.

The Appellant, as Plaintiff at the Lagos State High Court, sued the 1st Respondent claiming an order for specific performance of a contract for assignment of the 1st Defendant/Respondent's property at No. 15 Burma Road, Apapa, Lagos as well as an order for inquiry into damages and other consequential orders. It also claimed against the 3rd Defendant/Respondent an order of injunction preventing any beneficial transfer of rights in the property to him by the 1st Defendant.

On his part, the 3rd Defendant/Respondent averred that he bought the property through the agents of the 1st Respondent for the sum of N3.5 million. He claimed that he enjoyed the occupation of the property by virtue of a valid contract and counter-claimed for declaration that he is entitled to be registered as the proprietor of the property and for perpetual injunction. The relevant facts of the matter should be clearly set out at this point in time. The 1st Respondent was the owner of the property situate at No. 15 Burma Road, Apapa, Lagos, otherwise known as 11/15 Burma Road, Apapa. Lagos. In March 1986, the Appellant commenced negotiation with the 1st Respondent for the purchase of the stated property and offered the sum of N3 million as purchase price. The Appellant also agreed to pay the sum of N450,000.00 to the 1st Respondent as consent fee which the 1st Respondent will eventually pay to the Lagos State Government.

The Appellant, by its letter dated 27th March, 1986 Exhibit B requested the 1st Respondent to grant it an interest free loan in the sum of N450,000.00 to enable it pay the consent fee. This was rejected by 1st Respondent.

The 1st Respondent intimated the Appellant that other prospective purchasers have made offers for the purchase of the property. The Appellant was informed about an offer of N3.5 million received by the 1st Respondent and that the property would be sold to the person who satisfied the desired conditions of sale. On 3rd June, 1986, the Appellant and the 1st Respondent agreed for the sale of the property in the sum of N3 million on the further term that the Appellant would pay same together with the sum of N450,000.00 consent fee which the 1st Respondent would pay to the Lagos State Government.

The Appellant issued a cheque in the sum of N3 million drawn on the account of one Clix Glow Nigeria Limited but failed to pay the sum of N450,000:00 for the consent fee in accordance with the agreed terms and conditions for the sale of the property.

The 1st Respondent was desirous to have a purchaser who would fulfil the conditions of sale instantly. The 3rd Respondent had made moves through the 2nd Respondent in 1985 to purchase the property and deposited the sum of N1million. The 3rd Respondent agreed to pay the sum of N3.5 million. Sequel to payment of same in full in June, 1986, the 1st Respondent put the 3rd Respondent in possession of the property.

The 1st Respondent then refunded the sum of N3 million to the Appellant together with the sum of N50,000.00 as extant in Exhibit 'C'. The Appellant was not put in possession of the property by the 1st Respondent.

The learned trial Judge, in his considered judgment, found that the Appellant's failure to pay the consent fee was in breach of a material condition of the contract to assign the property.

The trial Court dismissed the Appellant's claims but awarded the sum of N75,000.00 to the Appellant as general damages for breach of contract.

The stance posed by the learned trial Judge precipitated an appeal as well as a cross-appeal at the Court below. The main appeal thereat, had to do with the refusal of the trial Court to make an order for specific performance of the contract of purchase of the stated property. The cross-appeal thereat had to do with the award of the sum of N75,000.00 as damages for breach of contract by the 1st Respondent which the Court below found difficult to explain since there was no such claim.

The Court below dismissed the main appeal before it filed by the Appellant. It found that the trial Court was right when it found that a decree for an order of specific performance could not be made. The main appeal was dismissed and the judgment of the trial Court was affirmed. The Court below kept mute in respect of the cross-appeal by the 1st Respondent thereat as no pronouncement was made with respect to the sum of N75,000.00 awarded as damages by the learned trial Judge for an alleged breach of contract by the 1st Respondent.

In a similar fashion, both sides of the divide felt dissatisfied with the stance of the Court below. The Plaintiff/ Appellant again filed an appeal in this Court. The 1st Defendant Respondent filed a cross-appeal. The two (2) appeals shall be treated in seriatim.