Facts:

The Appellant and 3rd Respondent granted loan to Bitumen Marketing Company Limited in respect of its bitumen Tank Farm at Oghara, Delta State which was unpaid and they both had right of sale in consequence. The 1st Respondent made an offer of N200,000,000.00 initially to the Appellant and the 3rd Respondent for the sale of the Tank Farm which was accepted by their letter of August 21st 2007. By a letter dated 6th November 2007, the Appellant for itself and the 3rd Respondent requested payment of the agreed sum from the 1st Respondent.

According to the 1st Respondent, it approached its banker the 2nd Respondent for a facility to purchase the Tank Farm and was granted on December 12th 2007. The 2nd Respondent forwarded two bank drafts in favour of both the Appellant and the 3rd Respondent as directed by the Appellant with a condition that it would conduct a search on the documents. It also requested for indemnity against all claims actions etc. A letter of indemnity dated January 21st 2008 was given by the Appellant to the 2nd Respondent and the 3rd Respondent sent its letter indemnifying the 2nd Respondent on January 24th 2008. By January 29th 2008 the originals of the bank draft were sent and received by one Mr. Abiodun Shode, of the Commercial Department of the Appellant.

Shockingly, the Appellant and the 3rd Respondent went ahead to collect the sum of N230,000.000.00 from the 4th Respondent in February 2008 as payment for the Tank Farm in spite of the payment made by the 1st and 2nd Respondents. They claimed they were unable to conclude the contract with the 1st and 2nd Respondents due to the latter’s late payment of the purchase price and therefore causing a frustration of the contract. In spite of repeated demands by the 1st and 2nd Respondents for the possession of the Tank Farm and title documents, the Appellant and 3rd Respondent failed to honour the demands but maintained that the Tank Farm was sold to the 4th Respondent.

Aggrieved, the 1st and 2nd Respondents proceeded to Court to demand amongst other reliefs, the specific performance of their contract with the Appellant and 3rd Respondent. The lower Court in its final decision granted some part of the reliefs sought by the 1st and 2nd Respondents.

Dissatisfied with the decision of the lower Court, the Appellant appealed to the Court of Appeal while the 1st and 2nd Respondents cross-appealed.