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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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part performance, specific performance

SPECIFIC PERFORMANCE FOR BREACH OF CONTRACT

It is settled law that in an action for breach of contract in which claim for specific performance is made, there must be a valid, solid and existing and enforceable contract. The contract and the terms must be unequivocal and not based on the realm of conjecture. Similarly, the parties to the contract must have understood one another that they were entering a binding contract. Also, a party seeking to enforce a contract must show that all the conditions precedent have been fulfilled and that he has either performed, or is ready to perform all the terms which ought to have been performed by him. Again, where time is of essence or a condition precedent expressly or impliedly stated, and he is guilty of delay in performing his own part of the agreement, then such delay could count against him and might bar his claim for specific performance.

– Sanusi JCA. Enejo v. Nasir (2006)

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EQUITABLE MORTGAGE TO CREATE A LEGAL MORTGAGE CAN SUE IN SPECIFIC PERFORMANCE

The equitable mortgage by agreement to create a legal mortgage, therefore, entitles the equitable mortgagee to something more than a mere right to payment out of the property or premises mortgaged; under the general principles, his remedies correspond as nearly as possible with those of the legal mortgagee. Because equity regards that as done which ought to be done the equitable mortgagee, by agreement to create a legal mortgage, can enforce the execution of a legal mortgage by suing in equity for specific performance; if successful he obtains a legal term of years and can then pursue all the statutory remedies open to a legal mortgagee.

– Idigbe JSC. Ogundiani v. Araba (1978)

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INGREDIENTS REQUIRED FOR UPHOLDING PART PERFORMANCE

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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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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SPECIFIC PERFORMANCE WILL NOT BE ORDERED WHERE DAMAGES WILL BE ADEQUATE

Paye v. Gaji (1996) 5 NWLR (Pt. 450) page 589 at page 605, it was held thus:- “It is settled law that specific performance being an equitable remedy should not be ordered where damages will be adequate to meet the justice of the case”.

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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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