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THERE MUST BE PART PERFORMANCE TO WARRANT SPECIFIC PERFORMANCE

Dictum

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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SPECIFIC PERFORMANCE DISTINGUISHED FROM DAMAGES

To sue for specific performance is to assume that a contract is still subsisting and therefore to insist that it should be performed. That will mean that the plaintiff will not want it repudiated unless for any other reason the court was unable to aid him to enforce specific performance of it. He may then fall back for remedy at common law for damages. Specific performance is a discretionary remedy. This does not mean that it will be granted or withheld arbitrarily; the discretion is a judicial discretion and is exercised on well settled principles. It means that in an action for the specific performance of a contract of the class usually enforced, the court may take into account circumstances which could not be taken into account in an action for damages for breach of contract, such as the conduct of the plaintiff, or the hardship which an order for specific performance will inflict on the defendant.

– Ba’Aba JCA. Enejo v. Nasir (2006)

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SPECIFIC PERFORMANCE OF CONTRACT OF SERVICE

The general rule is that the court will not grant specific performance of a contract of service. It therefore follows that a declaration to the effect that a contract of service still subsists is rarely made unless there are special circumstances to warrant making such a declaration. For example, where the contract of service has a legal or statutory flavour thus putting it over and above the ordinary master and servant relationship or where a special legal status such as a tenure of public office is attached to the contract of employment, in these circumstances, a court may use its discretion to declare that a contract of service still subsists. See: Olaniyan v. University of Lagos (2001) FWLR (Pt. 56) 808, (1985) 2 NWLR (Pt. 9) 559; Ewarami v. African Continental Bank Ltd. (1978) 4 SC 99 and Shitta-Bey v. Federal Public Service Commission (1981) 1 SC 40. –

Muhammad JCA. Osumah v. EBS (2004)

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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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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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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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