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INGREDIENTS REQUIRED FOR UPHOLDING PART PERFORMANCE

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Dictum

Our courts have accepted that notwithstanding that there is no note or memorandum the doctrine of part performance will operate in favour of the party seeking specific performance of a contract made in contravention of the statutory provision requiring written memorandum if the following conditions are satisfied: 1. there must be proper oral evidence to prove or establish the terms of the contract. 2. the contract must be specifically enforceable in other words it must not be a contract of personal service and the like. 3. for any act to suffice as part performance it must be unequivocally, and in its own nature referable to some such agreement as that alleged. It is however enough if the act is such as prove the existence of some contract and is consistent with the contract alleged. 4. If the plaintiff has wholly or in part executed his part of parol agreement in the confidence that the defendant would do the same.

– Amaizu, J.C.A. Adeniran v. Olagunju (2001)

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THERE MUST BE PART PERFORMANCE TO WARRANT SPECIFIC PERFORMANCE

On the issue of whether the appellant established sufficient acts of part performance to support and order for specific performance, it is the view of the court below that there had been no part performance to warrant a specific performance. I have myself considered all the evidence led before the court but can find no reason to fault this finding. At all events, whether or not part performance was established by the appellant in this case cannot now be regarded as any matter of great moment. This is because of my finding that there can be no specific performance of an agreement for a lease such as Exhibit A when the parties had not reached a consensus ad idem on vital issues such as the commencement date. The covenant, rent and mode of determination of the lease among others.

– Iguh JSC. Nlewedim v. Uduma (1995)

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BASIS FOR APPLYING PART PERFORMANCE

I also want to point out that the basis of the application of the doctrine of part performance is that when one of two contracting parties has been induced or allowed by the other to alter his position on the faith of the contract, as for instance by taking possession of land, and expending money in building or other like acts, there would be a fraud in the other party to set up the legal invalidity of the contract on the faith of which he induced or allowed the person contracting with him to act and expend his money. Textile Ind. (Nig.) Ltd. v. Aderemi (1999) 8 NWLR (Pt.614) 268 at 297 298.

– Onnoghen, J.C.A. Adeniran v. Olagunju (2001)

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PART PERFORMANCE REQUIRES POSSESSION INTO LAND

Therefore, for the plaintiff to be able to rely on part performance, he must be the person who has been let into possession of land and allowed to alter his position for the worse by carrying out acts in performance of the contract. Equity then come to his aid arising from the changed position in which he finds himself.

– Uwaifo JSC. Ekpanya v. Akpan (1988)

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HAVING NOT PAID FULL PURCHASE PRICE AND NOT LET INTO POSSESSION

Odusoga v. Ricketts (1997) 7 NWLR (pt.511) 1 at 21 where Wali, J.S.C said:- “The fact that the Respondent made part-payment to the vendor, for which he obtained a receipt Exhibit ‘A’ did not pass the legal estate of the land in dispute to him. Where a purchaser, as in this case, paid only part of the purchase price of a parcel of land which was demarcated into plots before the sale, went into possession, developed substantial part of the land while leaving the rest bushy and undeveloped, the legal estate of the undeveloped part still remained with the vendor, particularly when the purchaser had failed to pay the balance of the purchase price after several repeated demands”.

Onu, J.S.C at page 25 of the same report observed thus: “In the instant case, no such customary sale did indeed take place, and the trial Court rightly so found. This is because, the Respondent did not pay the full price for the 4 plots of land he purported to purchase from the Appellants for 950 pounds with a balance of 250 pounds left unpaid. The attributes of a valid sale being therefore absent from the purported sale to the Respondent, title thereto not having passed, the Court below seriously erred, when it held that under customary law the legal representatives of Jemi-Alade, transferred the ownership of the land in dispute on the part payment of the purchase price thereof. A fortiori the court below also was in error when, it held that the execution in 1976 of Exhibit ‘B’ was a confirmation of the purported customary sale which took place in 1965…”

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