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THERE MUST BE PART PERFORMANCE TO WARRANT SPECIFIC PERFORMANCE

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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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SPECIFIC PERFORMANCE REQUIRES EXACT PERFORMANCE OF A CONTRACT

Specific performance is the remedy of requiring exact performance of a contract in the specific form in which it was made or according to the precise terms agreed upon. It is the actual accomplishment of a contract by a party bound to fulfill it.

— A. Fabiyi, J.S.C. Ibekwe v. Nwosu (2011) – SC.108/2006

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WHAT IS SPECIFIC PERFORMANCE?

What then is specific performance? It is the rendering as nearly as practicable of a promised performance through a judgment or decrees; a court ordered remedy that requires precise fulfilment of a legal or contractual obligation when monetary damages are inappropriate or inadequate as when the sale of real estate or a rare article is involved. In essence the remedy of specific performance enforces the execution of a contract according to its terms. (Black’s Law Dictionary, Ninth Edition page 1528).

— J.A. Fabiyi, JSC. BFI v. Bureau PE (2012) – SC.12/2008

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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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NATURE OF SPECIFIC PERFORMANCE AND WHEN IT WILL BE GRANTED

The appellant, with the above position as depicted, desires to have specific performance of the agreement between it and the 1st respondent ordered by the court in its favour. Specific performance has been defined in Black’s Law Dictionary Ninth Edition at page 1529 as ‘the rendering, as nearly as practicable, of a promised performance through a judgment or decree; a court ordered remedy that requires precise fulfilment of a legal or contractual obligation when monetary damages are inappropriate or inadequate, as when sale of real estate or a rare article is involved. Specific performance is an equitable remedy that lies within the court’s discretion to award whenever the common law remedy is insufficient.’ In making an order for specific performance, the court must exercise its discretion judicially and judiciously as well. The Judge has to be discreet and balance the interest of both sides properly in his bid to do justice to the contending parties. See: (University of Lagos v. Olaniyan (1985) 16 NSCC (Pt. 1) 98, 113; Eronini v. Iheuko (1989) 2 NSCC (Pt.1) 503, 513; (1980) 3 SC (Pt.1) 30.

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

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