Wale Igbintade
A Nigerian-American engineer, Anthony Ehiedu Ugbebor, has asked the Court of Appeal in Lagos to overturn a judgment of the Lagos State High Court, Osborne, Ikoyi, which declared that his property purchase agreement with developer Olukayode Olusanya and Oak Homes Multinational Services Limited had been extinguished by the doctrine of novation and ordered the refund of the N152 million he paid for two luxury apartments in Victoria Island.
In a Notice of Appeal challenging the June 15, 2026 judgment delivered by Justice Akingbola George, Ugbebor contended that the trial judge misapplied settled principles of contract law, ignored material evidence, wrongly dismissed his counterclaim, and erroneously refused his claim for specific performance of the property sale agreement.
The appeal stems from Suit No. LD/4471LM/2023, instituted by property developer Olukayode Olusanya and Oak Homes against Ugbebor and the Economic and Financial Crimes Commission (EFCC), over alleged trespass on two second-floor three-bedroom apartments located at 14A Musa Yar’Adua Street, Victoria Island, Lagos.
Although the High Court dismissed most of the developer’s claims, it held that the parties’ conduct had effectively terminated their original agreement through novation.
The court also ordered Olukayode and Oak Homes to refund the N152 million previously paid by Ugbebor, while dismissing the engineer’s counterclaim seeking completion and delivery of the apartments or, alternatively, damages.
Dissatisfied with those findings, Ugbebor asked the Court of Appeal to overturn the judgment, restore the validity of the original contract and compel Oak Homes to honour its obligations under the agreement
In his appeal, however, Ugbebor urged the appellate court to set aside the judgment in its entirety, arguing that the trial court’s findings were contrary to the evidence and established legal principles governing contracts.
He maintained that the original agreement remained valid and enforceable and asked the Court of Appeal to compel Oak Homes to honour its contractual obligations.
One of his principal complaints is that the trial judge wrongly placed the burden of proving payment on him instead of the claimant.
According to the Notice of Appeal, the judge erred in holding that he failed to make payments within contractual timelines despite evidence that the payment structure under the agreement was tied to construction milestones rather than fixed dates.
The appellant argued that under the payment schedule contained in Exhibit CW1, 35 percent of the purchase price became payable upon completion of the roofing stage, while the final 20 per cent became payable only upon completion of the apartments.
He maintained that the agreement never required payment on fixed calendar dates and that he had already paid about 80 per cent of the agreed purchase price even though the developer allegedly failed to attain the contractual milestones.
According to him, the trial judge misconstrued the payment clauses and ignored the unchallenged testimony of the defence witness that substantial payments had been made despite the developer’s inability to complete the project as agreed.
He further argued that under the Evidence Act, the burden of proving non-payment rested on Oak Homes, which alleged breach of contract, and not on him.
A major plank of the appeal is the trial court’s reliance on the doctrine of novation.
Justice George had held that the conduct of both parties created a new contractual relationship which effectively extinguished the original agreement.
However, Ugbebor argued that the finding was contrary to established principles of Nigerian contract law.
Relying on the Supreme Court’s decision in Heritage Bank Ltd v. Ajugwo, he contended that novation cannot be presumed merely from the conduct of parties.
According to him, for novation to arise there must be a clear agreement by all parties to substitute the original contract with a new one, coupled with an intention to extinguish the previous contractual obligations.
He argued that no witness testified that such a new agreement existed and no documentary evidence established one.
Rather, he maintained that the conduct relied upon by the trial court was consistent only with issues of delayed performance and alleged breach, not the creation of an entirely new contract.
He therefore urged the Court of Appeal to hold that the original agreement remained valid and binding.
The appellant also faulted the lower court for refusing his counterclaim seeking specific performance.
He argued that having found that the developer attempted to profit from the breach of the agreement, the court ought to have compelled completion and delivery of the apartments instead of dismissing his counterclaim.
According to the appellant, the trial judge failed to appreciate that specific performance remains the primary remedy in contracts relating to land where monetary damages may be inadequate.
He further contended that the court failed to evaluate evidence showing that he was always ready and willing to perform his obligations under the agreement, an essential requirement for granting specific performance.
He submitted that, the court made no findings on that issue despite evidence and submissions made before it.
Ugbebor further complained that the trial court failed to determine the issue of frustration of contract, despite the fact that both parties pleaded it, led evidence on it and addressed the court extensively in their final written submissions.
He argued that the judge made no findings on whether any frustrating event occurred or whether it fundamentally altered the contractual obligations of the parties, thereby failing to determine all issues submitted for adjudication.
The appeal also challenged the dismissal of his counterclaim. Ugbebor argued that the trial judge merely concluded that the counterclaim had not been proved without evaluating each head of claim separately.
He maintained that the judgment contained no proper analysis of the evidence relating to his claims for general damages, special damages and specific performance.
He further argued that the court contradicted itself by acknowledging breaches committed by the claimant while simultaneously refusing all the reliefs sought in the counterclaim.
According to him, the refusal to award general damages was equally erroneous because such damages naturally flow from a proven breach of contract.
Consequently, the appellant is asking the Court of Appeal to set aside the judgment in its entirety.