As I observed a moment ago, the setting aside of a voidable transaction cannot be automatic. If it were, there will then be no difference between a void transaction (whose setting aside is automatic) and a merely voidable transaction (whose setting aside depends on all the equities and surrounding circumstances).
– Oputa, JSC. Adejumo v. Ayantegbe (1989)
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Pinnock Brothers v. Lewis & Peat Ltd (1956) 2 All E. R. 866, where the Privy Council Per Denning, LJ (as he then was) stated inter alia that: “It is now settled that exempting clauses of this kind no matter how wisely they are expressed, only avail the party when he is carrying out his contract in its essential respects.”
Now, it is settled that a valid contract may be discharged in any of the four ways namely: (a) by performance; or (b) by express agreement; or (c) by breach; or (d) by the doctrine of frustration. See Adedeji Vs Obajimi [2018] LPELR-33712(SC); Tsokwa Oil Marketing Company Vs B.O.N. Ltd [2002] 11 NWLR (Pt 777) 163.
— S.O. Adeniyi, J. Nwabueze v. ABU Zaria (2023) – NICN/KD/34/2021
Contracts are made by parties and the Court interprets same. Repudiation of contract cannot be done by one party, see ADENIYI VS GOVERNING COUNCIL OF YABA TECH (1993) LPELR-128(SC) held thus; “But repudiation by one party standing alone does not terminate the contract. It takes two to end it, by repudiation on the one side, and acceptance of the repudiation on the other.”
— Nimpar, JCA. Ekpo v GTB (2018) – CA/C/324/2013
Niger Insurance Company Ltd v Abed Brothers Ltd & Anor (1976) LPELR-1995 (SC), thus:- “A fundamental term of a contract is a stipulation which the parties have agreed either expressly or by necessary implication or which the general law regards as a condition which goes to the root of the contract so that any breach of that term may at once and without further reference to the fact and circumstances be regarded by the innocent party as a fundamental breach and thus is conferred on him the alternative remedies at his option”.
It is clear to me that a contract between parties may be discharged by breach of a fundamental term by any of the parties. There is no gain-saying the point that a breach of contract is committed when a party to the contract without lawful excuse fails, neglects or refuses to perform an obligation he undertook in the contract or incapacitates himself from performing same or in a way back down from carrying out a material term. See: Adeoti & Anr. v. Ayofinde & Anr. (2001) 6 NWLR (Pt.709) 336 … Where a party to a contract is in breach of a material term of same, the breach gives the aggrieved party a lee-way or an excuse for non-performance of its own side of the bargain. Such a party is at liberty to treat the contract as extinguished or at an end. See: Yadis (Nig.) Ltd. v. G.N.I.C. Ltd. (2007) 14 NWLR (Pt.1055) 584 at 609.
— Fabiyi, JSC. Best Ltd. v. Blackwood Hodge (2011) – SC
In Northern Salt Co. v. Electroytic Alkaki Co. (1914) A.C. 461, Viscount Haldane, L.C., stated this rule at page 469, thus: “My lords, it is no doubt true that where on the plaintiff’s case it appears to the court that the claim is illegal, and that it would be contrary to public policy to entertain it, the court may and ought to refuse to do so. But this must only be when either the agreement relied on is on the face of it illegal, or where, if facts relating to such an agreement are relied on, the plaintiff’s case has been completely presented. If the point has not been raised on the pleadings so as to warn the plaintiff to produce evidence which he may be able to bring forward rebutting any presumption of illegality which might be based on some isolated fact, then the court ought not to take a course which may easily lead to a miscarriage of justice. On the other hand, if the action really rests on a contract which on the face of it ought not to be enforced, then, as I have already said, the Court ought to dismiss the claim, irrespective of whether the pleadings of the defendant raise the question of illegality.”
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