Facts:

The appellant entered into a contract with the respondent wherein the latter advanced a margin trade facility to the appellant. The margin trade facility was granted in order to assist the appellant in creating an investment portfolio of quoted stocks traded within the Nigerian Capital Market for a tenor of 180 days. The facility was a sum of N500,000,000.00 (Five Hundred Million Naira). During the tenor of the facility, the respondent purchased shares and stocks on behalf of the appellant after acting on its instructions. After the expiration of the 180 days, the respondent alleged that the appellant was indebted to it to the tune of N481,264,702.57 (Four Hundred and Eighty One Million, Two Hundred and Sixty Four Thousand, Seven Hundred and Two Naira, Fifty Seven Kobo). The respondent therefore made a demand on the appellant to repay the debt. The parties entered into a series of negotiations that culminated in another agreement in which they agreed that the appellant should pay the sum of N399,999,473.81 (Three Hundred and Ninety Nine Million, Nine Hundred Ninety Nine Thousand, Four Hundred and Seventy Three Naira, Eighty One Kobo) in full satisfaction of the entire debt.
It was agreed that a deposit of N50,000,000.00 (Fifty Million Naira) be paid by the appellant to the respondent and that the rest of the amount be spread over a period of 18 months. Whilst these negotiations were ongoing, the appellant made it clear that it was unwilling to pay any interest on the agreed sum. The respondent however insisted on charging interest of 20% should the appellant fail to make payment within 18 months. Several deposits of N10,000,000.00 (Ten Million Naira) were subsequently paid at different times by the appellant to the respondent. In spite of the appellant’s insistence on its position not to pay interest on the agreed amount, the respondent went ahead to charge interest and made deductions from the appellant’s account. The appellant was aggrieved and after repeated instructions to the respondent to stop the charges and make a refund of what was already deducted to no avail, it filed a suit against the respondent at the High Court of Lagos State.
The appellant claimed that the respondent was in breach of the contract between the parties and that it was the failure of the respondent to sell its shares, the security for the facility, at the time it instructed it to do, that raised the indebtedness of the appellant to the respondent. The appellant also accused the respondent of selling its shares to third parties without its consent. After being served with the originating process, the respondent filed its defence and incorporated a counterclaim. The learned trial judge granted in part the reliefs sought by the appellant by holding that the respondent was liable to make a refund of N166,475,279.88 (One Hundred and Sixty-Six Million, Four Hundred and Seventy-Five Thousand, Two Hundred and Seventy-Nine Naira, Eighty-Eight Kobo) to the Appellant. In respect of the respondent’s counterclaim, the learned trial judge held that the appellant was indebted to the respondent in the sum of N269,999,473.81 (Two Hundred and Sixty Nine Million, Nine Hundred and Ninety Nine Thousand, Four Hundred and Seventy- Three Naira, Eighty-One Kobo Only). After reconciling the amounts and setting it off, the court held that the appellant was still indebted to the respondent in the sum of N103,524,193,09 (One Hundred and Three Million, Five Hundred and Twenty-Four Thousand, One Hundred and Ninety-Three Naira, Nine Kobo).
The appellant was dissatisfied and filed a notice of appeal at the Court of Appeal, Lagos Division. One of the issues raised by the appellant was whether the court was right, after having held that the respondent was under a contractual obligation to dispose the shares in the appellant’s account, to have entered judgment in favour of the respondent on its counterclaim rather than hold that the appellant was discharged from further obligation for the repayment of the amount outstanding on the facility. The respondent filed its brief and incorporated a respondent’s notice. One of the issues raised in the notice was whether the trial court was right to have held that the appellant was entitled to a refund of N166,475,279.88 (One Hundred and Sixty Six Million, Four Hundred and Seventy-Five Thousand, Two Hundred and Seventy Nine Naira, Eighty-Eight Kobo) by the respondent.