AISHA & ORS v. ADO AHMED (2019)

AISHA & ORS v. ADO AHMED

(2019)LCN/12951(CA)

In The Court of Appeal of Nigeria

On Friday, the 29th day of March, 2019

CA/K/454/2017

JUSTICES

OBIETONBARA O. DANIEL-KALIO Justice of The Court of Appeal of Nigeria

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE Justice of The Court of Appeal of Nigeria

JAMES GAMBO ABUNDAGA Justice of The Court of Appeal of Nigeria

Between

1. AISHA
2. MURTALA MUHAMMED
3. MUHAMMAD NATA’ALA Appellant(s)

AND

ADO AHMED Respondent(s)

RATIO

WHETHER OR NOT SPECIFIC PERFORMANCE IS AN EQUITABLE REMEDY GIVEN AT THE DISCRETION OF THE JUDGE

Specific Performance is an equitable remedy given at the discretion of a Judge when he is satisfied that legal or common law remedies e.g. damages would not meet the ends of justice. Where the Claimant has wholly or in part executed his own part of the parole agreement or has paid the purchase money and is let into possession even though no deed of sale or assignment has been executed, a Court of equity will order Specific Performance. See Help (Nig.) Ltd v. Silver Anchor (Nig.) Ltd (2006) 5 NWLR Part 972 Page 196 at 218-219 Para E-D per Tobi JSC, Page 215 Para E-F per Onu JSC.
There are, however, many cases in which the Court will not grant this relief, even if the remedy in damages is insufficient, as Specific Performance is a discretionary remedy. In granting this remedy, the Court is to examine carefully the competing interests of the parties. A party to a contract who wants the Court to order Specific Performance of a contract must adduce evidence of compliance with its terms, I hold. While the Court has discretionary powers to grant this relief, the same should be granted judicially and judiciously and not arbitrarily. It must weigh the consequence and hardship on the Defendant as well as the conduct of the Plaintiff before granting the order. See Achonu v Okuwobi (2017) 14 NWLR Part 1584 Page 142 at 181 Para D-E per Sanusi JSC
It was also held by the same Court, in the case of Best (Nig.) Ltd v. Blackwood Hodge (Nig.) Ltd (2011) 5 NWLR Part 1239 Page 95 at 116 Para G per Fabiyi JSC that in a contract for sale of land, failure to pay the purchase price constitutes a fundamental breach which goes to the root of the case, upon which the Court cannot decree specific performance.
As also held in the case of Ogundalu v. Macjob Supra, at Page 133 Para C per Aka’ahs JSC, a person seeking to enforce his right under a contractual agreement must show that he has fulfilled all the conditions precedent and that he has performed all those terms which ought to have been performed by him. ADEFOPE-OKOJIE, J.C.A.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Kano State delivered on the 23rd February 2017 by Hadiza Sulaiman J, granting the claim of the Respondent to peaceful occupation of a stall at the Sabon Gari Market, Kano and ordering specific performance of the contract of sale between the Respondent and the 1st Appellant. The Counterclaims of the 1st and 3rd Appellants were dismissed. Aggrieved, the Appellants appealed, by Notice of Appeal filed on 20/4/17.

In furtherance of the appeal, the Appellant filed a Brief of Arguments on 20/9/17, deemed as properly filed by this Court on 24/9/18, settled by Ibrahim M. Maichibi of Wada Bashir & Co. in which 6 (six) issues for the Court?s determination were distilled.

?The Respondent?s Counsel, Abubakar Muhammad Esq of Abubakar Muhammad & Co, filed a Notice of Preliminary Objection on 9/10/18 challenging some of the Appellants? Grounds of Appeal, arguments in respect of which were contained in the Respondent?s Brief of Arguments filed on the same date, 9/10/18.

In the event that the Preliminary Objection was not successful, he canvassed arguments in the Brief on the issues for determination raised by the Appellants.

The Preliminary Objection of the Respondent is as follows:
?The Appellants Grounds of Appeal Nos. 1,2,3, and 4 in the Appellants Notice of Appeal, which alleges misdirection and error in Law are incompetent and liable to be struck out, for noncompliance with the provisions of Order 7 Rule 2 (2) of the Court of Appeal Rules 2016.?

Arguing the Preliminary Objection, the learned Counsel to the Appellant, citing Order 7 Rule 2(2) of the Court of Appeal Rules 2016, submits that there was an infraction of these Rules. Rules of Court are meant to be obeyed, he submitted, citing Ape v Olomo (2013) All FWLR Part 668 Page 895. He accused the Appellant of failing to quote the passage of the judgment in which there was a misdirection or error in law, the nature of the misdirection and the full and substantial particulars.

?The Appellants? Counsel filed no response to the Preliminary Objection, this notwithstanding, the Preliminary Objection shall be determined on its merits.<br< p=””

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Order 7 Rule 2(2) of the Court of Appeal 2016 provides:
?Where a ground of appeal alleges misdirection or error in law, the particulars and the nature of the misdirection or error shall be clearly stated.?

The Notice of Appeal in this case consists of 7 (seven) Grounds of Appeal, which are contained at Pages 168-173 of the Record of Appeal. The Grounds complained about by the Respondent?s Counsel are Grounds 1, 2, 3 and 4.

Contrary to the submissions of the learned Respondent?s Counsel, however, I note that these grounds have accompanying particulars in their support, in such detail as to be almost superfluous.
Ground 1 states:
?The learned trial Judge misdirected (sic) when she held that the evidence of PW1, PW2 and PW3 are uncontradicted and unchallenged.?

This was followed by four (4) paragraphs of lengthy particulars detailing the alleged contradictions. Their reproduction, as with respect to the other Grounds, I consider unnecessary, being quite verbose.
Ground 2 similarly stated:
?The learned trial Judge misdirected (sic) and erred in

law when she held that the ingredients of valid contract still existed between the 1st Appellant and Respondent?

Three paragraphs of Particulars were given in amplification of this Ground.
Ground 3 is as follows:
?The learned trial judge misdirected and did not properly evaluate the evidence before her hence arrived at a wrong conclusion when she held that the 1st appellant accepted the deposit of six hundred thousand naira and it was after two weeks that the 1st appellant returned the sum of six hundred thousand naira to the 1st Appellant.?
Particulars of this ground were similarly given.

So also Ground 4, which states:
?The learned trial judge misdirected and erred in law and therefore arrived at a wrong conclusion when she held that the failure to pay the agreed sum of one million one hundred thousand naira by the respondent to the 1st appellant in respect of the stall at Abubakar Rimi Market is not a fundamental breach which is caught up by the doctrine of non-performance thereby leaving the 1st appellant with the option of repudiating the contract.?

?The Particulars of this Ground consisted of three numbered paragraphs in elucidation of the said ground. ?

The Appellants, from the foregoing, can certainly not be accused of giving insufficient particulars, the contrary being the situation.

The purpose of a ground of appeal is to give the Respondent notice of the grudges the Appellant has against the judgment he has appealed against. Particulars of a ground of appeal only provide specific details to fill the gaps in the grounds. Once a ground of appeal gives the Respondent the necessary notice of the grudges the Appellant has against the decision on appeal and leaves room for no surprises on the issues to be raised on the appeal, the ground is valid and competent, I hold.
Where a particular is inelegantly drafted, it does not invalidate the ground of appeal from which it flows. The issue is whether the complaint was genuine and understood by the opponent and not whether it could be substantiated. See Ogboru v Okowa (2016)11 NWLR Part 1522 Page 84 at 111 Para E-G per M.D Muhammad JSC.
?In determining whether or not a ground of appeal is competent, the proper approach is to focus on the substance of the complaint with a view to determining

whether the ground contains a genuine complaint which is understood by the adverse party. Elegance in couching a ground of appeal is not of material significance. Where a particular is inelegantly drafted, it does not invalidate the ground of appeal from which it flows. The issue is whether the complaint was genuine and understood by the opponent and not whether it could be substantiated. See Ngere v Okuruket XIV (2017) 5 NWLR Part 1559 Page 440 at 490 Para A-C per Peter-Odili JSC; Ladoja v Ajimobi (2016) 10 NWLR Part 1519 page 87 at 124 Para D-E per Ogunbiyi JSC; Waziri v Geidam (2016)11 NWLR Part 1523 Page 230 at 256- 258 Para A-G per Peter-Odili JSC.
In the instant case, the Grounds are sufficiently explicit in alerting the Respondent to the Appellants’ grievance with the Court?s judgment. The Particulars, as its name suggests, amplified these grounds, by giving particulars of the grounds. The Appellants, I thus hold, fully complied with Order 7 Rule 2(2) of the Court of Appeal Rules Supra. The Preliminary Objection is entirely devoid of merit and is accordingly dismissed.

?The Appellants? Counsel is however upbraided for failing to

file a Reply to the Respondent?s Preliminary Objection. He is cautioned never to approach his opponent?s processes with levity. Ordinarily, when a party fails to file a Reply to a process by his opponent, the presumption is that he does not oppose. By his failure to file a Reply to the Notice of Preliminary Objection, Counsel left his client exposed. A judge would not be faulted for upholding the Preliminary Objection for failure of the Appellants? Counsel to contest the Objection.
Fortunately for him, the current trend of the Courts is a determination of matters on their merits and the avoidance of a truncation of proceedings, except where the same, for no reason, can be maintained. A Counsel whose services have been retained by a client must always take steps to defend the interest of his client and not expect the Court to take on this role.
I now proceed to the substantive appeal.

The issues for determination formulated by the Appellant are the following:
1. Whether the learned trial judge was right when she held that the evidence of PW1, PW2 and PW3 was (sic) uncontradicted and unchallenged taking into

consideration the totality of the evidence adduced by the Respondent and the Appellants.
2. Whether the learned trial judge was right and arrived at a proper finding when she held that ingredients of a valid contract still subsist between the Respondent and the Appellants.
3. Whether the learned trial judge was right and has properly evaluated the evidence before her when she arrived at and formed part of the basis of her decision (sic) that six hundred thousand naira (N600,000) was paid by the Respondent and accepted by the 1st Appellant in respect of the stall “E? Rimi Market Fagge Local Government Area of Kano State.
4. Whether the learned trial judge was right when she held that there is no fundamental breach occasioned by the Respondent taking into consideration the totality of the evidence adduced by the Respondent and the Appellants?
5. Whether the learned trial judge was right when she entered judgment for the Respondent without taking into account the requirement of Section 4 of Statute of Frauds, 1677 which is a statute of General Application applicable to Nigeria, the Northern part in particular

stipulating that for a contract for sale of land to be enforceable it must be evidenced in writing?
6. Whether the 3rd Appellant is a bona fide purchaser for value without notice?
7. The judgment is against the weight of evidence?

The Respondent?s Counsel filed no issues for determination but responded to the issues raised by the Appellants? Counsel.

In proof of his case, the Respondent, as Plaintiff before the lower Court, testified and called two witnesses. The 1st and 3rd Respondents testified and called one witness.

?The case of the Respondent before the trial Court is that he was formerly a tenant of the 1st Appellant?s husband at a stall at Muhammadu Abubakar Rimi Market in Fagge Local Government Area of Kano State. He had been occupying the stall for a period of 12 years. Following the decease of the 1st Appellant?s husband, the 1st Appellant inherited the property. She, sometime in 2014, through the 2nd Appellant, offered to sell the stall to him and after negotiations in the presence of witnesses, he (Respondent) accepted the price demanded of N1,100,000 (One Million One Hundred Thousand Naira). It was agreed that he would make a down

payment of N600,000.00 (Six Hundred Thousand Naira) and would pay the balance of N500,000.00 (Five Hundred Thousand Naira) in three weeks, to which proposal the 2nd Appellant agreed. To his surprise, the 2nd Appellant turned round to sell the same stall to his neighbour, the 3rd Respondent for the same sum of N1,100,000.00 (One Million One Hundred Thousand Naira). He immediately filed an action at the Sharia Court, Kofar Kudu, in Kano State, seeking ?confirmation? of the transaction. The Court however dismissed the suit at the Appellants? instance, holding that it had no jurisdiction.

He complained that he sold most of his landed property at a low price in order to raise this amount. The 2nd and 3rd Appellants have been disturbing his occupation of the stall. He therefore sought the following reliefs from the lower Court:
?a. A Declaration that the Plaintiff is entitle (sic) to peaceful occupation of the said stall at “E? line behind “E? line mosque situated at Muhammed Abubakar Rimi Market, Fagge Local Government Area Kano.
b. An Order of specific performance against the Defendants.
c. Cost of this action.?

The case of the 1st Appellant, however, is that she and her children inherited the stall after the death of her husband. The Respondent, having been in default of payment of rent for over a year, she decided to sell the stall to purchase land for herself and her children. She appointed the 2nd Appellant to find a buyer. The Respondent, getting information of the intended sale, approached the 2nd Appellant, who introduced him to her (1st Appellant). He offered to pay N600,000.00 (Six Hundred Thousand Naira), which sum was rejected by her. She turned down a willing buyer who offered N1,100,000.00 (One Million One Hundred Thousand Naira) upon the plea of the Respondent that being the person in occupation, he be allowed to pay the sum of N1,100,000 (One Million One Hundred Thousand Naira) requested. When, after two weeks the Respondent brought only N600,000.00.00 (Six Hundred Thousand Naira), the 1st Appellant rejected it, insisting on payment of the full sum, which the Respondent agreed to pay within two weeks. He however failed to pay this sum. It was after the Respondent?s breach that she sold the stall to the 3rd Appellant for

the sum of N1,100,000.00 (One Million One Hundred Thousand Naira), following which she introduced the 3rd Appellant to the Respondent.

She counterclaimed against the Respondent for the following:
?1. A declaration that the sale of stall at E line situated at Muhammed Abubakar Rimi (Sabon Gari Market) in Fagge Local Government Area of Kano State by the 1st Defendant to the 3rd Defendant is valid, lawful and subsistence (sic).
2. AN ORDER that the Plaintiff offsets the Defendant (sic) the sum of fifty thousand naira being outstanding rent for one year incurred by the Plaintiff for the 1st Defendant prior to the sale of the stall ‘E’ to the 3rd Defendant.
3. AN ORDER that the Plaintiff pays the 1st Defendant the cost of this action.?

?The case of the 3rd Appellant is a confirmation of the sale to him by the 1st Appellant, relying on the Sale Agreement between him and the 1st Appellant. He denied prior knowledge of any negotiations between the 1st Appellant and the Respondent, maintaining that it was only after the sale to him by the 1st Appellant that he was introduced to the Respondent. It was subsequent to this sale, that

he instituted an action against the Respondent at the Rent Tribunal, demanding vacant possession.

He thus counterclaimed before the lower Court for the following:
?1. A declaration that the sale of stall at ‘E’ line situated at Muhammed Abubakar Rimi (Sabon Gari Market) in Fagge Local Government Area of Kano State by the 1st Defendant to the 3rd Defendant is valid, and subsistence (sic) in law.
2. AN ORDER of this Honourable Court that 3rd Defendant is the rightful owner of stall ‘E’ at Sabon Gari market having purchased same from the 1st Defendant.
3. AN ORDER that the Plaintiff shall give vacant possession of stall ‘E’ Sabon Gari Market.
4. AN ORDER for cost of this action.?

The lower Court, in its judgment, held the evidence of the Respondent?s witnesses uncontradicted that there was a contract of sale between the Respondent and the 1st Appellant in the sum of N1,100,000 (One Million One Hundred Thousand Naira) for the purchase of the stall in dispute, in furtherance of which the Respondent paid the sum of N600,000.00 to the 1st Appellant, with an undertaking that if the 1st Appellant refused, he would be

informed. The fact, he held, that the 1st and 2nd Appellants failed to notify the Respondent of the rejection of his offer, even though they returned the sum paid by him of N600,000.00, did not negate the existence of the contract. It, in consequence granted the Respondent?s claim and ordered the 1st and 2nd Appellants ?to accept the amount agreed upon at the initial stage of the sale agreement between them and the Plaintiff?.

The Court dismissed the Counter Claim of the 1st Appellant on the ground that insufficient evidence was led in proof thereof. The Counter Claim of the 3rd Respondent was similarly dismissed. The lower Court holding:
? ? there is a valid and subsisting contract agreement between the plaintiff and the 1st defendant.
2. That the 3rd defendant has had the actual knowledge of the sale agreement between the plaintiff and the 1st defendant and therefore, the 3rd defendant is not a bonafide purchaser for value without notice.?

The issues that I consider that determine this appeal, culled from the lengthy issues formulated by the Appellants, are the following:

1. Whether there was a contract of sale between the 1st Appellant and the Respondent.
2. Whether the Respondent was entitled to the equitable relief of specific performance.
3. Whether the 3rd Appellant was a purchaser for value, without notice of the Respondent?s equity.

The 1st issue is:
Whether there was a contract of sale between the 1st Appellant and the Respondent.

The Appellants? Counsel has argued, in his Brief of Arguments, that the lower Court erred and misdirected itself that the evidence of the Respondent was not challenged or contradicted. He referred to areas in the deposition of the Respondent which he alleged were in conflict with the Respondent?s pleadings. He further referred to contradictions between the statements on oath of the Respondent and his witnesses and also conflicts between their evidence and the Respondent?s pleadings.

?Counsel submitted that the lower Court erroneously arrived at the conclusion that the deposit of N600,000.00 was returned after two weeks, this being indicative, as it held, of a valid and subsisting contract agreement, when the evidence is that it was rejected immediately.

The agreement for sale of the stall came to an end, he submitted, when the said sum was returned to the Respondent. Counsel, citing the case of Omega Bank Plc v OBC Ltd (2005) All FWLR Part 249 (sic), gave the constituent parts of a valid contract.

By the Respondent failing to pay the entire contract price, the contract being without consideration, was not complete for which no decree of specific performance could be ordered, he further argued. He submitted that this fundamental breach gave rise to the repudiation of the contract by the 1st Appellant. A contract, he said, will be discharged by breach when the party in breach had acted contrary to the terms of the contract, which contract can be discharged by non-performance, by performing the contract not in accordance with the terms and by its wrongful repudiation. He cited Ahmed v CBN (2012) 51 NSCQR 398 at 411 per Adekeye JSC, insisting that the performance of the Respondent of the contract was not in accordance with the terms by only paying N600,000 and which was immediately rejected.

?The Respondent?s Counsel, in response to these arguments, submitted that the lower Court was right in

holding the evidence of PW1, PW2 and PW3 with regard to the existence of the contract, as uncontradicted and unchallenged, adding that this evidence was also admitted by DW1, DW2 and DW3 under cross examination and thus being admitted, needed no further proof. The Court was accordingly right in ordering the Appellants to accept the amount agreed upon, as the Respondent had performed what ought to have been performed by him.

He cited the case of BFI Group v Bureau of Public Ent. (2013) All FWLR Part 676 Page 444 where it was held:
?A person seeking to enforce his right under a contractual agreement must show that he has fulfilled all the conditions precedent and that which he ought to have performed by him.?

Relating this authority to their case, he submitted that there was an offer to the Respondent to buy the stall, which he accepted.

The 1st Appellant however breached this offer by selling to the 3rd Appellant in the same amount. As the Respondent did not categorically state that he will not buy the stall, he is entitled to an order of specific performance.

?He submitted that the basic elements of contract, such as

offer, acceptance, consideration, intention to enter into a relationship were present, referring to Orient Bank Nigeria PLC v Bilante International Ltd (1997) 8 NWLR Part 515 Page 37; Green Fingers Agro-Ind Ent Ltd v Yusufu (2004) FWLR Page 202. The trial Judge was therefore right to have held that there was a valid binding contract agreement at the time the subject matter was sold, as there was sufficient consideration, the Respondent being left with the impression that the 1st Appellant had accepted the part payment of the N600,000.00. It was thus an enforceable contract. He submitted that the lower Court had rightly evaluated the evidence before the Court.

On the delay of the Respondent to make payment, he submitted that it is not every delay to perform a material part of a contract that amounts to repudiation which entitles the other party to treat the contract as at an end. There must be a refusal to perform something which goes to the root or essence of the contract. He cited FGN v Zebra Energy Ltd (2002) FWLR Part 92 Page 1749.

?He argued further that delay in the payment of the balance within an extended period is not a breach of contract

and the extension is not a new contract which necessarily required a formal acceptance.

The basic elements of a binding contract, I hold, are the following:

a. Offer;

b. Acceptance;

c. Consideration;

d. Capacity to contract; and

e. Intention to create a legal relationship. See BPS Construction & Engineering Company Limited V. Federal Capital Development Authority (2017) 10 NWLR Part 1572 P1 at 25-26 Para G-D per Kekere-Ekun JSC. To constitute a binding contract, the parties must be in consensus ad idem with regard to the essential terms and conditions thereof. A simple contract, not under seal, must be supported by consideration. There must be a concluded bargain which has settled all essential conditions that are necessary to be settled and leaves no vital term or condition unsettled. For a contract to be regarded as legally binding and enforceable, there must be an unconditional and unqualified acceptance of the terms of offer. See Adedeji v Obajimi (2018) 16 NWLR Part 1644 Page 146 at 167 Para G per Bage JSC; BPS Construction & Engineering Company Limited V. Federal Capital Development

Authority Supra; Ogundalu v. Macjob (2015) 8 NWLR Part 1460 Page 96 at 132 Para C-D per Muntaka-Coomassie JSC; National Revenue Mobilization Allocation and Fiscal Commission v. Johnson (2019) 2 NWLR Part 1656 Page 247 at 263 Para A-E per Ariwoola JSC.
In the instant case, the case presented by the Respondent in his pleading and deposition is that the parties had concluded at the sum of N1,100,000 and that it was agreed that he would pay a deposit of N600,000.00 and the balance in three weeks. He was therefore surprised to be told that the 1st Appellant had sold the stall to the 3rd Appellant. The 1st and 2nd Appellants, however deny that the proposal of the Respondent for part payment was accepted.
In determining this issue, the areas that are not in dispute are the following:
1. That the stall was up for sale for the sum of N1,100,000.00.
2. That the Respondent agreed to buy it for the said sum, proposing to pay instalmentally, with a down payment of N600,000.00 and the balance to be paid, some say in two weeks, others in three weeks.
3. The 1st Appellant did not accept this offer, requesting full payment of the purchase price.

4. The down payment of N600,000.00 paid by the Respondent was rejected and returned to the Respondent.
Questions that, however, need to be determined in ascertaining whether there was an enforceable contract, are the following:
i. Whether by payment of the sum of N600,000 an enforceable contract was made.
ii. Whether the 1st Appellant failed to communicate its rejection of the instalmental payment requested, leading to the assumption that a contract capable of being enforced was created.
In determining these issues, it is necessary to refer to the evidence of the witnesses.
The claim of the Respondent, as stated above, is that, following his proposal of installmental payment, he was not informed of its rejection, only to discover that the stall had been sold to a third party.
He, however stated under cross examination as follows:
?It is not true that I was given 2 weeks to pay up the agreed price not up to a month was given to me. What happened was I made a down payment of N600,000.00 to which they said they will go and meet the owner of the shop as to whether she will accept or not?.It is

true that the N600,000.00 I gave to the 2nd and 3rd (sic) Defendants was returned to me. It is true that later on the 2nd Defendant phoned me to say that the shop was sold to the 3rd Defendant. I immediately protested on the reasons that the 2nd and 3rd (sic) Defendants promised to come back and inform me whether the 1st Defendant will agree to the amount I paid or not but they did not come back to tell me and the next thing I heard was that it was sold to the 3rd Defendant. Yes I am aware that after the money was returned to me there was one Auwalu Rufai who bought it as N1,100,000 immediately met Auwalu Rufai who agreed to leave the shop to me to purchase on the reason that he is not aware that I am interested in the shop and so he asked me to go and pay up the money.
My N600,000.00 was returned to me immediately on that very day without giving me (sic) whether the owner of the shop has agreed to accept my offer or not?
Underline Mine.
?The deposition of the 1st Appellant, who testified as DW3, at Pages 74-75 of the Record, as aforesaid, is that she rejected the proposal of the Respondent for instalmental payment,

following which she sold the stall to the 3rd Appellant. Under cross examination, she stated, relevant to the issue under consideration:
?Yes it is true I was informed by the agent (my brother) that the tenant offered to buy the shop at the sum of N1,100,000.00. Yes it is true that I sold the shop to the 3rd Defendant in the sum of N1,100,000.00. It is true that the Plaintiff did not tell me categorically that he is out of the sale transaction.?
The lower Court, in deciding this question, while agreeing that the full payment was not effected, held:
.it is not every refusal to perform material part of a contract that amounts to a repudiation which entitled (sic) the other party to treat the contract as at end (sic). In my opinion, there must be refusal to perform something which goes to the root or essence of the contract.?
The Court quoted the decision of the Court of Appeal in the case of Federal Government of Nigeria v Zebra Energy Ltd (2002) FWLR Part 92 Page 1749 at 1766, where it held:
?Delay in the payment of balance within an extended period of balance not breach of contract and the extension is not a new contract where parties were idem on the contract.?

It therefore held:
?Therefore having regard to the above decision, I do not agree with the testimonies of DW1 and DW3 that the Plaintiff did not meet up with the 2 weeks agreed upon for him to pay the agreed amount. Similarly granting an extension of time to perform is an affirmation of the contract and therefore it cannot be a basis for terminating the contract?..the fact that there was no any communication (sic) either by the 1st defendant or the 2nd defendant on whether the 1st defendant has agreed with the deposit or not, is enough consideration because the plaintiff is left with the impression that the 1st defendant has accepted the part payment of the six hundred thousand naira (N600,000.00).?
?As held in the cases cited by me above, to constitute a binding contract, the parties must be in consensus ad idem on the essential terms and conditions thereof. There must be a concluded bargain which has settled all essential conditions that are necessary to be settled and leaves no vital term or condition unsettled. A precise offer must have been made, with an unconditional acceptance of the terms of the offer.

Thus, whether or not the 1st Appellant collected the sum of N600,000.00, only to return it, as contended by the Respondent or whether or not the 1st Appellant rejected the money outright, as Appellants? Counsel contends, it is clear from the testimony of the parties and their witnesses that the Appellant did not agree to the payment proposal of two installments by the Respondent.
The Respondent, as aforesaid, admitted this much, when he said, under cross examination that the acceptance of his down payment was contingent upon the consent of the 1st Appellant, for which there was no response. He also admitted that his deposit was returned to him.
Thus from the consistent evidence of the Appellants and the admission of the Respondent under cross examination, the Respondents proposal for instalmental payment, it is clear, was never given.
In the case cited by the Respondent?s Counsel of BFI Group v Bureau of Public Ent. (2013) All FWLR Part 676 Page 444, and which, unfortunately is of no assistance to him, it was held that ?A person seeking to enforce his right under a contractual agreement must

show that he has fulfilled all the conditions precedent and that which he ought to have performed by him.?
Applying that case to the instant one, there has been no fulfillment, I hold, of the conditions precedent which ought to have been performed by the Respondent, which could have led to the enforcement by him of any rights thereunder.
While Courts will seek to uphold bargains made commercially, wherever possible, it must be satisfied that there was an ascertainable and determinate intention to contract. See Omega Bank (Nig.) Plc. v. O.B.C. Ltd. (2005) 8 NWLR Part 928 Page 547 per Musdapher JSC (as he then was).
The same Court held, per Edozie JSC in the said case, that the three essential ingredients of valid contract are ?offer, an unqualified acceptance of that offer and a consideration.?
?It is evident in this case that the negotiations between the parties had not crystallised into a binding contract. There was thus no consensus ad idem, or ?meeting of the minds? in respect of the sale of the 1st Appellant?s stall to the Respondent, the proposal for payment not having been accepted by the 1st Appellant. ?

The trial Court was therefore in error to have held that the implication of the silence of the 1st Appellant implied her consent and that there was in existence a contract which had been breached.
I thus resolve the 1st issue for determination in favour of the Appellants.

The 2nd issue for determination is:
Whether the Respondent was entitled to the equitable relief of specific performance.
Specific Performance is an equitable remedy given at the discretion of a Judge when he is satisfied that legal or common law remedies e.g. damages would not meet the ends of justice. Where the Claimant has wholly or in part executed his own part of the parole agreement or has paid the purchase money and is let into possession even though no deed of sale or assignment has been executed, a Court of equity will order Specific Performance. See Help (Nig.) Ltd v. Silver Anchor (Nig.) Ltd (2006) 5 NWLR Part 972 Page 196 at 218-219 Para E-D per Tobi JSC, Page 215 Para E-F per Onu JSC.
There are, however, many cases in which the Court will not grant this relief, even if the remedy in damages is insufficient, as Specific Performance is a

discretionary remedy. In granting this remedy, the Court is to examine carefully the competing interests of the parties. A party to a contract who wants the Court to order Specific Performance of a contract must adduce evidence of compliance with its terms, I hold. While the Court has discretionary powers to grant this relief, the same should be granted judicially and judiciously and not arbitrarily. It must weigh the consequence and hardship on the Defendant as well as the conduct of the Plaintiff before granting the order. See Achonu v Okuwobi (2017) 14 NWLR Part 1584 Page 142 at 181 Para D-E per Sanusi JSC
It was also held by the same Court, in the case of Best (Nig.) Ltd v. Blackwood Hodge (Nig.) Ltd (2011) 5 NWLR Part 1239 Page 95 at 116 Para G per Fabiyi JSC that in a contract for sale of land, failure to pay the purchase price constitutes a fundamental breach which goes to the root of the case, upon which the Court cannot decree specific performance.
As also held in the case of Ogundalu v. Macjob Supra, at Page 133 Para C per Aka’ahs JSC, a person seeking to enforce his right under a contractual agreement must show

that he has fulfilled all the conditions precedent and that he has performed all those terms which ought to have been performed by him.
In the instant case, the basis for the Court decreeing an order of specific performance was because, as it held, ?there is a valid and subsisting contract agreement between the plaintiff and the 1st defendant.?
As I have held above, there was no valid or subsisting contract between the Respondent and the 1st Appellant, as a fundamental term had not been complied with. Failure to pay the purchase price in the manner requested, disentitled the Respondent to this remedy, I hold.
It certainly was not fair to the 1st Appellant, recently widowed, who was desirous of using the purchase price to buy property for herself and her children, and who needed the full payment to enable her purchase the said property, to be held up endlessly by the Respondent whose insistence was to pay in instalments. ?Weighing the consequence and hardship on the 1st Appellant as well as the conduct of the Respondent in discouraging buyers, only for him not to fulfill the terms as demanded by the 1st Appellant, and this, in the face of

ready buyers, militated against the grant of specific performance of the contract to him, I hold.
The lower Court, I accordingly hold, was in error to have ordered Specific Performance of the contract.
I again resolve the 2nd issue for determination in favour of the Appellants.

The 3rd issue for determination is:
Whether the 3rd Appellant was a buyer without notice of the Respondent?s prior equity.

The evidence before the Court, undisputed by all parties, is that it was following the default by the Respondent that the 3rd Respondent purchased the property. There was no proof that the 3rd Respondent knew of what transpired between the Respondent and the 1st Appellant. His uncontradicted evidence is that it was only after the sale that he was introduced to the Respondent, following which he instituted proceedings for his ejection from the property.

Strangely, however, the lower Court appeared to have believed otherwise, when it held:
?On the submissions of counsel to the defendant, that the 3rd defendant is a bona fide purchaser for value without notice, I have considered the testimony of PW1

where he stated that the 3rd defendant was informed by PW1 that there is a subsisting sale agreement on the subject matter in question and that, the 3rd defendant agreed to leave the shop to the plaintiff to pay up the agreed price. This piece of evidence was not shaken under cross-examination and therefore deemed admitted. Considering the above, the 3rd defendant has actual notice and knowledge of the subsisting contract between the plaintiff and the 1st defendant and therefore cannot be a bona fide purchaser for value without notice and I so hold.?

It appears that the lower Court was confused between ?Auwalu Rufai?, the initial buyer who was dissuaded by the Respondent from purchasing the property on the ground that he was a sitting tenant who desired to purchase the stall, and the 3rd Appellant to whom the stall was eventually sold. It is the lower Court?s apparent belief that the 3rd Appellant was that first buyer, that, it is clear, persuaded the Court to have held as it did above.

?In the absence of any evidence to the contrary, the 3rd Appellant, I hold, was indeed a purchaser for value without

knowledge of the prior interest of the Respondent and the trial Judge was in error to have so held.
I again resolve this issue in favour of the Appellants.

Having resolved all the issues in favour of the Appellant, I hold that this appeal succeeds. The judgment of the lower Court is set aside. The claim of the Respondent before the lower Court is dismissed.

The Counter Claim of the 1st Appellant succeeds in part, as follows:
1. A declaration is made that the sale of the stall at ?E? line situated at Muhammed Abubakar Rimi (Sabon Gari Market) in Fagge Local Government Area of Kano State by the 1st Appellant to the 3rd Appellant is valid, lawful and subsists.
2. The prayer for arrears of rent of N50,000.00 for one year is refused for lack of proof.
3. Costs of N25,000.00 are awarded in favour of the 1st Appellant and against the Respondent.

?The Counterclaim of the 3rd Appellant is granted, as follows:
1. A declaration is made that the sale of the stall at ?E? line situated at Muhammed Abubakar Rimi (Sabon Gari Market) in Fagge Local Government Area of Kano State by the 1st Appellant to the 3rd Appellant is valid, lawful and subsists. ?

2. A declaration is made that the 3rd Appellant is the rightful owner of stall ?E? at Sabon Gari Market, having purchased the same from the 1st Appellant.
3. The Respondent is hereby ordered to give vacant possession of stall ?E? at Sabon Gari Market. The same to be done within 14 days of this judgment.
4. Costs of N25,000.00 are awarded against the Respondent and in favour of the 3rd Appellant.

OBIETONBARA O. DANIEL-KALIO, J.C.A.: I have read the draft Judgment of my lord OLUDOTUN ADEBOLA ADEFOPE-OKOJIE JCA. and I agree with both the reasoning and conclusion of my lord. From the evidence of the respondent under cross-examination, it is obvious that he did not deal directly with the 1st appellant, the owner of the shop. This is clear from that part of his evidence under cross-examination where he stated thus:
?I made a down payment of N600,000.00 to which they said they will go and meet the owner of the shop as to whether she will accept or not.?

It is also obvious that the 1st appellant did not accept the

down payment as the evidence of the respondent, still under cross-examination, shows that the N600,000.00 was returned to him immediately. The main elements of a valid contract are (1) that the parties must intend to enter into legal relations. In other words the parties must ?mean business?. (2) there must be an agreement, that is to say, an offer and an acceptance. (3) there must be a consideration or the promise must be contained in a deed. See Chitty on Contracts, Vol. 1, 24th Edition. Was the element of an agreement present in this case? The answer has to be in the negative. This is because there is no manifestation of mutual assent by the 1st appellant and the respondent. An agreement is not a mental state but an act, and as an act, is a matter of inference from conduct. See Chitty on Contract (supra). The conduct of the appellant in returning the N600,000.00 to the respondent clearly shows that there was no agreement. For this reason and the fuller reasons given in the lead judgment, the appeal has merit and is allowed.

?JAMES GAMBO ABUNDAGA, J.C.A.: I have had the preview of the Judgment delivered by my learned brother,

OLUDOTUN ADEFOPE-OKOJIE, JCA. She has painstakingly and admirably taken on all the germane issues for the determination of this appeal.

?I am therefore in agreement with her that the appeal is meritorious, and hereby allowed. The Judgment of the Lower Court is hereby set aside with a consequential order dismissing the Respondent?s claim before the Lower Court. In its place, Judgment is entered for the 1st and 3rd Appellants on their counter claims in the exact terms contained in the lead Judgment. I abide by my Lord?s order as to costs.

Appearances:

A. I IbrahimFor Appellant(s)

Abubakar MuhammedFor Respondent(s)

Appearances

A. I IbrahimFor Appellant

AND

Abubakar MuhammedFor Respondent