CHIEF S. C. ODOGWU v. DANIEL AMZARANDA
(2010)LCN/3836(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 2nd day of June, 2010
CA/A/74/08
RATIO
EQUITABLE REMEDIES: NATURE OF SPECIFIC PERFORMANCE
Specific Performance is an equitable relief given by the Court to enforce against a Defendant the duty of doing what the Defendant has agreed to do by contract. See U.B.N Plc v. Erigbuem (2003) FWLR Pt. 180 page 1365.
The Supreme Court in Help (Nig.) Ltd. v. Silver Anchor (Nig.) ltd. (2006) All FWLR Pt. 311 page 1838 per Kastina-Alu, JSC (as he then was) held thus:
“The general principle of law is that specific performance is discretionary remedy. The discretion is judicial discretion and is exercised on well settled principles. The jurisdiction to order specific performance is based on the existence of a valid, enforceable contract. The courts will not decree specific performance if the contract suffers from defects such as informality, mistake or illegality which makes the contract invalid or unenforceable……………………………… In International ile Industries(Nigeria) Limited v. Dr. Aderemi & ors (1999) 8 NWLR Pt. 614 page 268, this Court held that:
“the fundamental rule is that specific performance would not be decreed if there is an absolute remedy at law in answer to plaintiffs claim, that is to say when the plaintiff would be adequately compensated by the common law remedy of damages.” PER ABDU ABOKI, J.C.A.
EQUITABLE REMEDIES: CIRCUMSTANCES WHERE AN ACTION FOR SPECIFIC PERFORMANCE WILL FAIL
The law is that a person who is 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. Consequently, a Plaintiff in an action for Specific Performance of an agreement must fail if there is default on his part to discharge his own obligations under the contract. See Ezenwa v. Ekong (1999) 11 NWLR Pt. 625 page 55 at 62.
Also the Supreme Court in Coker v. Ajewole 1976 NSCC page 429 at 433 has held that a Plaintiff in an action for Specific Performance of an agreement cannot succeed if:
“i. there is failure on his part to discharge his obligation under the said agreement
ii. he has been guilty of delay in performing his own part of the agreement in cases where-
a. time was, in equity, of the essence of their agreement; or
b. although originally time was not of the essence of the contract, it subsequently become so by express or implied agreement; or
c. by his conduct the delay was such as may be taken to be evidence of abandonment of the agreement.” PER ABDU ABOKI, J.C.A.
JUSTICES
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
MARY PETER-ODILI Justice of The Court of Appeal of Nigeria
ABDU ABOKI Justice of The Court of Appeal of Nigeria
Between
CHIEF S. C. ODOGWU Appellant(s)
AND
DANIEL AMZARANDA Respondent(s)
ABDU ABOKI, J.C.A. (Delivered the Leading judgment) This Appeal is against the Judgment of the High Court 1 Suleja Niger State delivered on 20th September 2007, by Hon. Justice Oseni Oyewo.
The brief fact of the case is that the Appellant and the Respondent were friends and colleagues who had worked together for a number of years at UTC Suleja/Abuja. In 1998, the Respondent agreed to buy the house of the Appellant known as Plot 24 GRA Suleja and the Appellant agreed to sell same at the purchase price of N900, 000. 00 (Nine Hundred Thousand Naira). The Plaintiff confessed that he could not raise the agreed sum en bloc but that he would pay instalmentally. The Plaintiff made the first deposit of N105, 000. 00 (One Hundred and Five Thousand Naira) and also the sum of N62, 000. 00 (Sixty-Two Thousand Naira) on 16/12/98. Two receipts were tendered to evidence these deposits as Exhibits C and D respectively. The Appellant acknowledged the receipt of the total sum of N244, 725. 00 (Two Hundred and Forty-four Thousand, Seven Hundred and Twenty-five Naira). Thereafter the Respondent stopped payment in 1999 whilst the Appellant and his family continued to live in the property.
The Respondent instituted an action against the Appellant in Suleja praying for specific performance of the contract. The trial Court found in favour of the Respondent, refusing the first leg of the claim which asked for a declaration that the transaction between the Plaintiff and the Defendant is credit Sale for which property has passed to the Plaintiff/Respondent; but only granted an order of specific performance directing the Defendant/Appellant to conclude with the Plaintiff/Respondent the contract of sale of his property by accepting the balance of N646, 625.00 from the Plaintiff/Respondent and the Defendant/Appellant thereafter executing a Deed of Assignment/Transfer of the property to the Respondent putting him and handing over all documents evidencing ownership of the property to the Respondent.
The Defendant/Appellant being dissatisfied with this Judgment filed a Notice of Appeal dated the 14th day of November, 2007. The Appellant also filed his Brief of Argument dated the 8th day of April, 2008 on the same date. The Respondent’s Brief of Argument dated the 2nd day of June, 2008 was filed on the 5th day of June, 2008.
From the four Grounds of Appeal contained in the Notice of Appeal, a lone issue was distilled on behalf of the Appellant for the determination of this Appeal.
The issue reads thus:
“Did the Plaintiff perform his obligations under the Agreement to entitle him to the remedy of specific performance?”
On behalf of the Respondent a lone issue was also formulated for the determination of this Appeal thus:
“Whether the lower court was right in its order of specific performance in view of the evidence before the court?”
I have carefully perused the issues distilled by both the Appellant and Respondent for the determination of this Appeal and I observed that they are similar and all relates to the Grounds of Appeal filed by the Appellant; however I shall adopt the issue as formulated by the Appellant for the determination of this Appeal.
Issue One
“Did the Plaintiff perform his obligations under the Agreement to entitle him to the remedy of specific performance?”
Learned Counsel for the Appellant, P. O. Okolo submitted that the question is whether the learned trial judge was entitled to give the order of specific performance as he did. He queried whether it can be said that the Plaintiff/Respondent has satisfied all the conditions for the grant of the order of specific performance.
P. O. Okolo referred the Court to the case of Coker v. Ajewole 1976 NSCC and maintained that the Supreme Court per Idigbe JSC (as he then was) had, in that case, spelt out the conditions precedent for the grant of an order of specific performance.
Learned Counsel for the Appellant pointed out that the learned trial judge in his Judgment held inter alia that the evidence show that the Plaintiff/Respondent was willing to pay the judgment balance of the money within a reasonable time.
He submitted that being willing to pay is one thing while the real payment is another. Learned Counsel pointed out that the agreement to sell the property commenced in 1998; that in the same year the Plaintiff/Respondent made some deposits and that by the end of 1999 the Plaintiff/Respondent had made payments totalling N244, 725 (Two Hundred and Forty-four Thousand, Seven Hundred and Twenty-five Naira).
P. O. Okolo maintained that these payments is less than 1/3 of the total purchase price and that the pace of payment is really very low and poor, more so that the Defendant/Appellant informed the Respondent in good time that he wanted the money for a project at Onitsha.
Learned Counsel stressed that the Respondent only took action after two years in 2002 when he started writing letters inviting the Appellant to come for a resolution of the issue and that by his conduct, the Respondent has failed to discharge his obligation under the agreement.
He further stated that a closer look at all the Respondent’s letters shows that there was no where the Respondent stated that the money was ready for collection but was only inviting the Appellant to discuss the matter. Learned Counsel referred the Court to Exhibit Q.
P. O. Okolo maintained that also in Exhibits S & U, the Respondent invited the Appellant to settle the matter.
Learned Counsel submitted that the Appellant’s uppermost interest was the payment of the remaining balance and not discussion of any matter or settlement of any matter as was always stated by the Respondent in his letters and that the series of letters showed clearly that the Respondent had no money to fulfil his obligation under the agreement. He urged the Court to so hold.
He further submitted that the 31st of August, 1999 given the Respondent by the Defendant might have been the reason for the Respondent’s insistence of the dialogue for an amicable settlement in his letters and that explains why the Respondent did not in his pleading and evidence challenge the fact that the Appellant gave him a deadline of 31/8/99 for the nullification of the agreement. P. O. Okolo urged the Court to uphold the fact that the Appellant giving the Respondent 31/8/99 ultimatum after waiting for 2 years to collect the balance of the price of the property is the Appellant’s reasonable and justifiable reaction to the delay of the payments.
Learned Counsel submitted that all the while the Respondent was looking for the Appellant, he never told the Appellant that his money was ready and that he should come and collect it; that this shows the Respondent’s inability to pay the money at a reasonable time.
He maintained that being unable to pay has exposed the Respondent as being unable to satisfy all the conditions necessary for an order of specific performance given by the lower Court and he urged the Court to so hold while referring the Court to the case of: LSPC v. Nigeria Land and Sea Foods (1992) 65 SCNJ 243: Prince Adetunji Balogun & 4 ors v. Alh. N. B. Alli-Ola & 7 ors (2000) 3 NWLR Pt. 649 page 477 at 482.
Learned Counsel submitted that on the whole the learned trial Judge erred when he held that evidence shows that the Respondent was writing to pay the balance of his money within a reasonable time.
He further submitted that the learned trial Judge erred when he held that the Appellant by his conduct of travelling out of Suleja made himself unreachable for the Respondent to pay the balance of his debt in time. Learned Counsel further submitted that this finding is against the weight of evidence and thereafter perverse.
P. O. Okolo maintained that there is ample evidence that from the beginning of the transaction the Appellant indicated to the Respondent that he had a project in Onitsha showing that his next domicile after Suleja is Onitsha. He argued that the two receipts Exhibits ‘C’ and ‘D’ show the Defendant’s location at Onitsha i. e. No. 20 Uga Street, Fegge, Onitsha and that the wife and daughter of the Appellant told the Respondent that the Appellant is at Onitsha while Exhibit ‘R’ a letter written by the Appellant to the Respondent show the same address.
He further pointed out that the same address is shown on Exhibits S and V. Learned Counsel submitted that evidence of the actual location of the Appellant are abundant before the trial Court, that the address is within the shores of this country and that it is reachable yet the trial Court held that the Appellant absconded.
P. O. Okolo maintained that the Respondent by his conduct did not fulfil his obligations to entitle him to the relief he claimed and he prayed the Court to so hold.
Learned Counsel argued that the conduct of the Respondent cannot be used to apportion blame to the Defendant by stating that the Appellant ‘absconded’. He referred the Court to the Oxford Advanced Learner’s Dictionary 6th Edition year 2000 on the definition of the word ‘abscond’.
P. O. Okolo maintained that the Appellant cannot be said to have departed Suleja secretly or suddenly when his family i.e. wife and children are in Suleja and that he cannot be said to have absconded when his address and location at Onitsha is well known an he can be reached. He contended that nothing would have stopped the Respondent from travelling within a day to locate the Appellant at No. 20 Uga Street Fegge in Onitsha with his money or even a bank draft to solve his problem rather than the long route of litigating this matter.
He urged the Court to hold that to describe the journey of the Appellant to Onitsha as ‘absconding’ is erroneous and misconceived by the trial Court.
P. O. Okolo argued that the Appellant confided in the Respondent that he was selling the house to enable him execute a project at Onitsha and he urged the Court to hold that time is of the essence of the agreement while referring the Court to the case of: Isaac O. Nlewedim v. Kalu Uduma (1995) 6 SCNJ 72.
Learned Counsel maintained that time being of the essence coupled with the fact that the Appellant gave an ultimatum of 31/8/98 and he urged the Court to hold that there is a failure on the part of the Respondent to discharge his obligation under the agreement by his refusal or inability to complete the payment of the purchase price on time.
He also urged the Court to hold that the silence of the Respondent from 1999 to 2002 has shown clearly substantial evidence of abandonment of the agreement and referred the Court to the case of: Innih v. Ferado A & Ltd. (1990) 5 NWLR Pt. 152 gape 604 at 627.
P. O. Okolo further submitted that from the circumstances of this case one thing stands out clearly and that is the vagueness of the agreement between the parties as to the time of the completion of payment of the purchase price, lack of any deed of assignment, lack of evidence of commencement of the term of years, lack of evidence of time of hand over and take over of possession.
He maintained that that being so, this Court is urged to apply the decision of the Supreme Court per Belgore JSC (as he then was) in the case of Isaac O. Nlewedim v. Kalu Uduma (supra) that “If an agreement is vague,……………..it will not be enforced in the absence of clear evidence of its terms.”
Learned Counsel submitted that more importantly the Plaintiff/Respondent’s conduct throughout the transaction show his inability to carry out his obligation under the agreement and that this obligation is the payment of the purchase price for the property.
He maintained that the Plaintiff/Respondent’s inability led to the eventual collapse of the transaction and he urged the Court to so hold.
P. O. Okolo urged the Court to answer this issue in the negative as the Plaintiff/Respondent did not perform his obligations under the agreement and to allow this Appeal as well as set aside the Judgment of the trial Court.
In his response on this issue, Counsel for the Respondent Akin Adewale submitted that the resolution of this issue calls for a thorough and dispassionate analysis of the evidence before the Court on which the trial Court anchored its Judgment.
He maintained that the Respondent has met all the conditions that must be fulfilled by a person seeking equitable remedy of specific performance as itemized in the case of:
Coker v. Ajewole (supra) page 429.
Learned Counsel submitted that they shall proceed to argue the conditions and how the Respondent met them.
On the condition that there must be no failure on the part of the Respondent to meet his obligation under the agreement or show willingness to perform essential condition of the contract, Learned Counsel pointed out that the evidence of the Respondent and that of his witnesses is that the Appellant offered to sell his property to him in 1998 an agreed price of N900,000; that from the testimony of the Respondent i.e. PW5 at pages 49 – 53 of the Record, he informed the Appellant that he could not pay the said N900,000 en bloc and that the Appellant assured him that if he could pay him N100,000 deposit, the balance could be paid by instalments and without a dead line date given.
He maintained that the Respondent then paid N105, 000 as first deposit for which the Appellant issued him receipt, Exhibit C, acknowledging the said sum as part payment for the sale of the said plot 24 GRA, Suleja.
Learned Counsel contended that the Appellant as per agreement for payment by instalments accepted more payments from the Respondent and in his evidence at pages 55 – 58 of the Record admitted that he agreed for payment by instalments but for a period up to 31/8/99 as deadline to complete payment.
Akin Adewale maintained that from the foregoing, the area of difference between the two parties is the 31/8/99 deadline which the Respondent denied.
Learned Counsel contended that the only issue to be resolved is to ascertain whether there was Indeed a deadline to complete payment by 31/8/99 and if not whether the Respondent has exhibited willingness to pay the balance but could not do so due to the disappearance of the Appellant from Suleja.
Akin Adewale maintained the agreement between the parties entered into on 16/12/1998 had no date to pay the balance.
He further maintained that there was no agreement that the sale of the house would be vitiated if the Respondent failed to pay the balance by 31/8/09; that the Appellant did not at any stage inform the Respondent that if he failed to pay the balance by 31/8/99 the transaction would be terminated and that the so called deadline was an after thought.
Learned Counsel also pointed out that in the debt analysis Exhibit N done by the Appellant and the Respondent on 18/8/99, a period of about 12 days to the so called deadline, the deadline of 31/8/99 was omitted.
He contended that the words used throughout in all documents acknowledging part-payment for the house are “my house sold to him”. Learned Counsel argued that these words were unqualified and unconditional in themselves to show that the house was sold to the Respondent without any condition as to the time to complete payment.
Akin Adewale submitted that the condition that can be read into the agreement is that if time is not of essence in the payment of the balance, what was the reasonable time the Respondent was expected to pay the balance.
He maintained that reasonable time would be ascertained through the evidence before the Court and the overall circumstances of the case.
Learned Counsel pointed out that the Respondent testified that he paid some money up to 1999 and the Appellant incurred debts from the former which he asked be converted to part-payment for the property; that the Respondent also testified that the Appellant absconded from Suleja later in 1999 and so could not get him to pay the balance and for conclusion of the transaction; that the Respondent after waiting endlessly for the Appellant to come back to Suleja to conclude the transaction started writing letters to him that he should come to Suleja to conclude the transaction.
He maintained that the letters written by the Respondent to the Appellant were admitted in Court as Exhibits Q and U and that the main theme in all the letters is on the sale of the house in question and the fact that the Appellant has absconded from Suleja without concluding the transaction; and the need for the Appellant to hastily come back to Suleja to conclude the matter otherwise the Respondent would explore litigation option to conclude the matter.
Learned Counsel submitted that these letters from the Respondent to the Appellant showed his anxiousness and willingness to conclude the transaction and that the transaction could only be concluded by the Appellant coming down form Onitsha to Suleja to collect the balance, execute documents alienating the property to the Respondent and then hand over the title documents to the latter. He maintained that there is no better way to show willingness on the part of the Respondent to conclude the transaction.
Akin Adewale further submitted that the Appellant replied some of the letters from the Respondent and that in all the replies of the Appellant, he was apologetic blaming his absence from Suleja as the problem. He referred the Court to the replies of the Appellant i.e. Exhibits R, T and X.
Learned Counsel for the Respondent maintained that the letters from the Respondent to the Appellant were in respect of the sale of the house in question and that the replies of the Appellant were also in respect of the same house as there was no other dispute between the parties. He argued that if indeed the Appellant has terminated the sales contract since 31st August, 1999, the tone of his letters would not have been so apologetic.
Learned Counsel pointed out that the Respondent, at page 49 of the Records, testified before the Court that the sales contract could not be concluded due to the absence of the Appellant from Suleja over the years after collecting deposits; and that it was the assertion of the Appellant before the Court, at page 57 of the Records, that since 1999, he has been shuttling between Suleja and Onitsha.
He submitted that the evidence of the Appellant that he has been visiting Suleja before 1st January, 2001 cannot be true in view of the Appellant’s letter, Exhibit T where he wrote – “………Please you bear with me as I have not been able to come up to Suleja all these years due to circumstances beyond control.”
Akin Adewale submitted that it was due to the absence of the Appellant from Suleja over the years after collecting deposits in 1999 that led to the inability of the parties to conclude the sales contract.
He further submitted that in the circumstances that the Respondent had shown willingness to perform his own obligation which was frustrated by the absence of the Appellant, the latter cannot at the same time turn around to accuse the Respondent of not performing his obligation in the sales contract.
Learned Counsel pointed out that the Appellant in his Brief raised the issue that time was of the essence in payment of the balance and that the Respondent’s failure to pay the balance within reasonable time vitiated the agreement.
He maintained that this cannot be true in view of the foregoing submissions and the evidence on record.
Akin Adewale contended that the Appellant was not even eager to conclude the sales transaction and hand over the house to the Respondent as since the Appellant left Suleja for Onitsha in 1999, his family have been living in the house till 2004 when they joined him in Onitsha. He referred the Court to page 56 of the Records.
Learned Counsel also submitted that the Appellant was not keen about concluding the transaction as he rented one of the flats to tenants from whom he is collecting rents. He referred to page 55 of the Records.
On the issue that that since the Respondent knew the Appellant’s address at Onitsha, he could not have correctly claimed that the Appellant absconded from Suleja, learned Counsel submitted that the issue of Appellant’s address in Onitsha is not relevant to the case as all the letters written to the Appellant were routed through his wife. He maintained that the transaction was along in Suleja, the house is also in Suleja and can only be handed over to the Respondent after the conclusion of the transaction in Suleja; and also the fact the Appellant in his replies to the Respondent promised on several occasions to come to Suleja to meet the former over the issue.
He pointed out that the Appellant in his Brief argued that nothing would have stopped the Respondent from travelling within a day to locate him with his money or even a Bank draft to solve this problem rather than the long route of litigating this matter. Learned Counsel contended that the above submission has missed the real issue involved in this case as the issue is that the Appellant has refused to conclude the transaction and the Respondent had to resort to litigation as a last option to enforce performance of the contract Learned Counsel maintained that if the Appellant is eager to accept payment as submitted by him and conclude the transaction, he would have willingly accepted the balance which the Respondent paid to the Registrar of the High Court, Suleja after the Judgment and hand over the house to the Respondent.
Akin Adewale also pointed out that the Appellant argued that from 1999 to 2002 there was no action by the Respondent to pay the balance and submitted that this was tantamount to abandonment of the contract. He maintained that this argument is not supported by evidence on the record.
Learned Counsel contended that the positive evidence before the Court is that after 1999, the Appellant left for his home town Onitsha. He referred the Court to page 49 of the Record.
He further argued that the first letter from the Respondent to the Appellant asking him to come to Suleja for the house issue which was admitted as Exhibit Q dated 1st January, 2001 shows that the assertion that the Respondent went to sleep over the matter between 1999 and 2002 could not be true.
Akin Adewale stated that even before the Respondent started writing letters from Is1 January. 2001, he had made personal efforts to reach the Appellant by visiting his house in Suleja. He submitted that the Respondent did all he could to reach the Appellant right from 2000 up to when out of frustration he started writing letters to him.
He further submitted that the case of Nlewedim v. Uduma (supra) cited by the Appellant’s Counsel can be distinguished from the present case as the facts are not the same being that the it is the Appellant who made it impossible for the Respondent to reach him to conclude the sales transaction with all unfulfilled promises to come to Suleja to conclude the contract. Learned Counsel maintained that it would be unjust to now put the blame on the Respondent.
Akin Adewale contended that the Respondent’s claim for specific performance succeeded in the trial Court because the conditions for it have been met by the Appellant.
On the whole, learned Counsel submitted that the Appellant was not straight in the transaction; that his hands are not clean and he should not be allowed to soil the white garment laid on the altar of Justice. He referred the Court to the case of: Anaeze v. Anyaso (1993) 7 SCNJ 151 at 170.
He further submitted that the Respondent has performed or is ready and willing to perform all the terms of the contract; that from the circumstances of this case payment of damages cannot be adequate compensation where the Appellant has breached the contract and that the equitable remedy in this case should be specific performance of the contract. He referred to the cases of: Universal Vulcaniser Nig. Ltd. v. Ijesha United Trading & Transport Co. Ltd (1992) 11/12 SCNJ 243 at 257; Anaeze v. Anyaso (supra) at 170-171.
Learned Counsel urged the Court to hold that from the circumstances of the case, the Respondent is entitled to an Order of specific performance.
He pointed out the fact that the Appellant in his Brief argued about the vagueness of the transaction especially with respect to the time to complete payment of the purchase, lack of deed of assignment and lack of hand over date of the property. Learned Counsel maintained that there is no vagueness of any kind in this agreement as the parties have agreed on the price of the property, the property being sold and the mode of payment.
Akin Adewale submitted that the essential matters concerning agreement are not vague and that there was no dispute on them. He maintained that the issue of vagueness was misconceived and should be discountenanced Learned Counsel further submitted that the Appellant cannot rely on Section 4 of the Statute of Fraud to canvass that because there was no written agreement i.e. Deed of Assignment on the land transaction, oral agreement could not be admitted especially when the lower Court has admitted the oral evidence of the transaction.
Akin Adewale contended that there were also receipts issued by the Appellant acknowledging part payments for the sale of his house No. 24 GRA, Suleja. He argued that in the circumstance, there was part performance by the Respondent for which the equitable doctrine of part performance would avail him and referred the Court to the case of: Obijiaku v. Offiah (1995) 7 SCNJ 142 at 150.
Learned Counsel urged the Court to uphold the Judgment of the trial Court and dismiss this Appeal as lacking in merit.
The Plaintiff/Respondent in his Statement of Claim dated 9/6/2005 sought for the following Orders:
“a. A declaration that the transaction between the Plaintiff and the Defendant is credit sale for which property in the said Plot 24 GRA has passed to the Plaintiff.
b. An Order of specific performance directing the Defendant to conclude with the Plaintiff the contract of sale of his property known as Plot 24 GRA, Suleja by accepting the balance of N646, 625.00k from the Plaintiff and the Defendant executing Deed of Assignment/Transfer of the property to the former putting him in actual possession of the said property and handing over all documents evidencing ownership of the property to the Plaintiff.”
The learned trial Judge in his findings on pages 59 – 62 of the Records refused to grant the first leg of the Plaintiff/Respondent’s prayers but granted the second leg.
The crux of this Appeal is to determine whether the Plaintiff/Respondent performed his obligations under the agreement to entitle him to the remedy of Specific Performance as granted by the trial Court.
Specific Performance is an equitable relief given by the Court to enforce against a Defendant the duty of doing what the Defendant has agreed to do by contract. See U.B.N Plc v. Erigbuem (2003) FWLR Pt. 180 page 1365.
The Supreme Court in Help (Nig.) Ltd. v. Silver Anchor (Nig.) ltd. (2006) All FWLR Pt. 311 page 1838 per Kastina-Alu, JSC (as he then was) held thus:
“The general principle of law is that specific performance is discretionary remedy. The discretion is judicial discretion and is exercised on well settled principles. The jurisdiction to order specific performance is based on the existence of a valid, enforceable contract. The courts will not decree specific performance if the contract suffers from defects such as informality, mistake or illegality which makes the contract invalid or unenforceable……………………………… In International ile Industries(Nigeria) Limited v. Dr. Aderemi & ors (1999) 8 NWLR Pt. 614 page 268, this Court held that:
“the fundamental rule is that specific performance would not be decreed if there is an absolute remedy at law in answer to plaintiffs claim, that is to say when the plaintiff would be adequately compensated by the common law remedy of damages.”
The law is that a person who is 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. Consequently, a Plaintiff in an action for Specific Performance of an agreement must fail if there is default on his part to discharge his own obligations under the contract. See Ezenwa v. Ekong (1999) 11 NWLR Pt. 625 page 55 at 62.
Also the Supreme Court in Coker v. Ajewole 1976 NSCC page 429 at 433 has held that a Plaintiff in an action for Specific Performance of an agreement cannot succeed if:
“i. there is failure on his part to discharge his obligation under the said agreement
ii. he has been guilty of delay in performing his own part of the agreement in cases where-
a. time was, in equity, of the essence of their agreement; or
b. although originally time was not of the essence of the contract, it subsequently become so by express or implied agreement; or
c. by his conduct the delay was such as may be taken to be evidence of abandonment of the agreement.”
The agreement between the parties in this Appeal commenced sometimes towards the end of 1998. It is on record that the Plaintiff/Respondent made payments totalling N244, 725. 00 (Two Hundred and Forty-four Thousand, Seven Hundred and Twenty-five Naira) between 1998 and 1999.
It is the allegation of the Appellant that the Respondent stopped payment in 1999 and that this has exposed the Respondent as being unable to satisfy all the conditions necessary for an order of specific performance whilst the Respondent alleged that the Appellant absconded from Suleja and that made payments by him to the Appellant impracticable.
The excerpts from the correspondence between the Appellant and the Respondent i. e. Exhibits Q, R.S.T.U and X are pertinent at this juncture and they are hereby reproduced for ease of reference as follows:
The excerpts from Exhibit Q written by the Respondent to the Appellant at page 29 of the Record read thus:
“As regards the sale of your house, No. 24 GRA Suleja to me which an advance about N275, 000.00 was collected by you from me and you absconded away to your home town, Onitsha…….
Up till the time of writing this letter since I did not hear or see you as regards sale of the house matter. Chief Odogwu, I am really surprised if you can play me such a 419 by collecting my money in the name of selling your house to me and you ran away………………………………..”
In his reply to the above, the Appellant wrote Exhibit R and the excerpts at page 29 of the Record from the said Exhibit read:
“I received your letter from my wife, and wish to say that I will be coming to Suleja to see you for detailed discussions by middle of March 2002”
When the Appellant failed to visit Suleja in March 2002, the Respondent wrote another letter Exhibit S. The excerpts at page 30 of the Record read:
“I write to remind you of your letter dated 31st January, 2002 up till the time I (sic) writing this letter to you I have not seen you or neither your letter as promised by you.
Chief, it will not be good for you if I go to Court to summon you before coming to Suleja………”
The excerpts from Exhibit T at page 30 of the Record written by the Appellant read:
“…. I Promise to be with you and family on 20th of September, 2002 to enable us resolve all the issues amicably………………………”
The excerpts from Exhibit X also at page 30 of the Record written by the Appellant read:
“………….. Please, you should bear with me, as I have not been able to come to Suleja all these years due to circumstances beyond my control.
Please I must be with you soon for amicable settlement. Do not go to extremes to tarnish our friendship and brother hood.”
I have carefully perused the excerpts reproduced above and I am of the opinion that the Respondent showed a willingness not only to pay the outstanding balance of the contract sum but also have the transaction concluded. This must have prompted the trial Court to make the following finding at page 61 of the Record of Proceedings:
“The above piece of evidence showed that the Plaintiff was willing to pay the balance of his money within a reasonable period.
I am of the view that, the Defendant, by conduct, in traveling out of Suleja and making himself unreachable made it impossible for the Plaintiff to pay the balance of debt on time.”
HON. JUSTICE UWANI MUSA ABBA AJI, J.C.A: I was privilege to read before now the judgment of my learned brother, ABDU ABOKI, JCA, just delivered and I entirely agree with the reasoning and conclusions of my learned brother that the appeal lacks merit.
I also dismiss the appeal as lacking in merit. I endorse any consequential order including order as to costs.
MARY U. PETER-ODILI, J.C.A. I have had the privilege of reading the draft Judgment of my learned brother, ABUD ABOKI JCA. I agree with the judgment and the reasonings therefrom. There is nothing more to add.
I abide by the orders he has made.
Appearances
P. O. OkoloFor Appellant
AND
Akin AdewaleFor Respondent
