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WHAT IS SPECIFIC PERFORMANCE?

Dictum

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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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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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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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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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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THERE MUST BE PART PERFORMANCE TO WARRANT SPECIFIC PERFORMANCE

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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