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THE ILLEGAL PART OF A CONTRACT CAN BE SEVERED FROM THE OTHER LEGAL PART

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This is because it is a recognized principle of law that a contract will rarely be totally illegal or void: certain parts may be entirely lawful in themselves, while others are valid. Where the illegal or void parts can be “severed” from the rest of the contract on the well-known principles of severance such will be done and the rest of the contract enforced without the void part. It is permissible for courts to adopt this course where the objectionable part of the contract involves merely a void step or promise and is not fundamental, and it is possible to simply strike down the offending part without re-writing or remaking the contract for the parties and without altering the scope and intention of the agreement; and lastly, the contract, shorn of the offending parts, retains the characteristics of a valid contract. See on these Vol. 9 Hals. Laws of England (4th Edn.) p.297 in paragraph 430. See also Commercial Plastics Ltd. v. Vincent (1964) 3 All E.R. 546, C.A.

— Nnaemeka-Agu, JSC. Adesanya v Otuewu (1993) – SC.217/1989

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FOUR WAYS IN WHICH CONTRACT MAY BE DISCARDED

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

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ONLY WHERE THERE IS A CONSENSUS AD IDEM THERE IS A CONTRACT

It is trite that a valid contract can exist only when there is a “consensus ad idem” i.e., when there is a meeting of mind of the parties showing that the parties are bound by a specific term. This meeting of mind is, expressed in the form of “an offer” and “an acceptance” of that offer. It is only where they exist that there is a valid contract.

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

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WHEN A CONTRACT OF SALE EXISTS

A contract of sale exists where there is a final and complete agreement of the parties on essential terms of the contract, namely the parties to the contract, the property to be sold, the consideration for the sale and the nature of the interest to be granted. Once there is agreement on these essential terms, a contract of sale of land or property is made and concluded. In a contract for sale of property, where part, payment was paid, the law is that the contract for purchase has been concluded and is final, leaving the payment of the balance outstanding to be paid, The contract for the sale and purchase is absolute and complete for which each party can be in breach for non-performance and for which an action can be maintained for specific performance.

— O.O. Adekeye, JSC. Mini Lodge v. Ngei (2009) – SC.231/2006

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CONSTITUTING A BINDING CONTRACT: OFFER, ACCEPTANCE, CONSENSUS AD IDEM

In law, to constitute a binding contract between parties, there must be a meeting of the mind often referred to as consensus ad idem. The mutual consent relates to offer and acceptance. While an offer is the expression by a party of readiness to contract on the terms specified by him by which if accepted by the offeree gives rise to a binding contract, the offer only matures into a contract where the offeree signifies a clear and unequivocal intention to accept the offer. An offer can be accepted in such a manner as may be implied, such as doing an act which the person expecting acceptance wants done. On the other hand, an invitation to treat is simply the first step in negotiations between the parties to a contract. It may or may not lead to a definite offer being made by one of the parties to the other in the negotiation. In law therefore, an invitation to treat is thus not an agreement or contract. See Meka BAB Manufacturing Co. Ltd v. ACB Ltd (2004) 2 NWLR (PT. 858) 521. See also Unitab Nigeria Ltd v. Engr. Oyelola and Anor (2005) All FWLR (Pt. 286) 824 @ pp. 829-830; Okugbule and Anor v. Oyegbola and Ors (1990) 4 NWLR (pt. 147) 723; See also Afolabi v. Polymera Industries Ltd (1967) 1 All NLR 144; Nneji v. Zakhem Construction Nig. Ltd (2006) 12 NWLR (Pt. 994) 297; BFI Group Corporation v. Bureau of Public Enterprises (2012) LPELR-9339 (SC).

— B.A. Georgewill JCA. Stanbic IBTC Bank Plc V. Longterm Global Capital Limited & Ors. (CA/L/427/2016, 9 Mar 2018)

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MEANING OF THE TERM ‘CONTRACT’

A contract may be defined as a legally binding agreement between two or more persons by which rights are acquired by one party in return for acts or forbearances on the part of the other. In effect a contract is a bilateral affair which needs the ad idem of the parties, therefore where the parties are not ad idem, the court will find as a matter of law that an agreement or contract was not duly made between the parties. Odutola v. Papersack (Nigeria) Limited (2006) 18 NWLR Pt. 1012 pg.470. Olowofoyeku v. A-G. Oyo State (1990) 2 NWLR Pt. 132 pg. 369 Oreint Bank (Nigeria) Plc. v. Bilante International Limited (1997) 8 NWLR Pt. 515 pg. 37 Societe General Bank (Nigeria) v. Safa Steel and Chemical Manufacturing Limited (1998) 5 NWLR Pt. 548 pg. 168.

— Adekeye, JSC. Best Ltd. v. Blackwood Hodge (2011) – SC

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A FAILED CONTRACT – BREACHED CONTRACT

A contract can be discharged by breach. A breach of contract means that the party in breach has acted contrary to the terms of the contract either by non-performance or by performing the contract not in accordance with its terms or by a wrongful repudiation of the contract. A party who has paid money to another person for a consideration that has totally failed under a contract is entitled to claim the money back from the other.

– Adekeye JSC. Nwaolisah v. Nwabufoh (2011)

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