IDEMUDIA v. OSAYANDE
(2022)LCN/16836(CA)
In The Court Of Appeal
(BENIN JUDICIAL DIVISION)
On Friday, May 20, 2022
CA/B/81/2020
Before Our Lordships:
Uchechukwu Onyemenam Justice of the Court of Appeal
James Gambo Abundaga Justice of the Court of Appeal
Ademola Samuel Bola Justice of the Court of Appeal
Between
MRS. PATIENCE IDEMUDIA APPELANT(S)
And
KENNETH OSAYANDE RESPONDENT(S)
RATIO
WHETHER OR NOT THE APPELLATE COURT CAN INTERFERE WITH THE EVALUATION OF EVIDENCE DONE BY THE TRIAL COURT
I now proceed to consider whether the lower Court properly evaluated the evidence of the parties and their witness and arrived at a correct decision. I have gone through the assessment of the evidence of the witnesses by the learned trial Judge. Without mincing words, the trial Judge considered, the weight, the reliability, credibility and the acceptability of the evidence placed before the Court. The above factors were considered at the assessment of the facts and evidence before making the finding of facts. The lower Court also considered the evidence adduced in the light of its relevance, quality, probability and conclusiveness. These were the essential factors which the lower Court considered in the evidence. They are indicators of evaluation of evidence. I must state that this Court does not make a practice of interfering with the findings of a trial Court based on adequate and proper evaluation of the evidence before it. In this appeal, it has not been shown that the evaluation by the lower Court was based on wrong principles of law or was perverse. I therefore see no reason to interfere with the evaluation of the evidence and findings by the lower Court.
I find the learned trial Judge’s evaluation and findings of fact to be proper, adequate, correct, sound and unassailable. See FCMB V. Reg. Trustees of Moses Salihu Foundation (2018) LPELR 45160 (CA). PER BOLA, J.C.A.
THE POSITION OF LAW WHERE THERE IS AN EXISTING VALID AGREEMENT BETWEEN PARTIES IN RELATION TO A SALES OF A PROPERTY IN DISPUTE
In the Supreme Court case of Ohiaeri V. Yussuf & Others. (2009) LPELR – 2361 (SC). It was held thus, on when the Court ought to grant specific performance:
“It has been established that there was an existing valid agreement between the parties in relation to the sale of the property in dispute, compiled with the facts and circumstances in which the Court can exercise its discretionary powers in equity to order specific performance of same, particularly where the agreement is ex-facie not illegal or offend public policy, the Court will definitely enforce same.”
Having held that the agreement between parties in relation to the property is valid and against the backdrop that the Respondent was yet to fulfill in his own side of the agreement fully, that is payment in full of the agreed sum, the Appellant has satisfied the condition precedent for the enforcement of the order of specific performance in her favour. I therefore hold the view that the lower Court was right in making the order of specific performance.
In Victor Eka V. Kuju (2013) LPELR 22124 (CA), Iyizoba JCA held:
“In contract for sale of property where part payment was paid, the law is that contract for purchase has been concluded and is final, leaving the balance outstanding to be paid. The contract for the sale and purchase are absolute and complete for which each party can be in breach for non-performance and for which an action can be maintained for specific performance.” PER BOLA, J.C.A.
ADEMOLA SAMUEL BOLA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of Hon. Justice J.O. Okeaya-Inneh of the High Court of Justice, Benin City, delivered on 23/5/2016. He upheld the counter-claim of the Defendant (Respondent) and ordered that the Claimant is entitled to the specific performance in the contract of sale of the property known and situate at No.19, Idahosa Street, Off Mela Motel Road, Benin City, behind Uselu Market, Uselu, Benin City to the sum of N420,000 (Four Hundred and Twenty Thousand naira) only, and an Order of Perpetual Injunction restraining the Claimant now Appellant, her agents, privies, servant from doing anything inconsistent with the Defendant.
Dissatisfied with the decision of the lower Court, the Claimant appealed to this Court when she filed her Notice of Appeal on 30/4/2019. The Record of Appeal was transmitted on 05/03/2020.
The Appellant’s Brief of Argument settled by C.E. Agbonwanegbe was filed on 16/7/2020 but deemed properly filed and served on 19/1/2022. The Respondent’s brief was settled by A.M. Aleogho Esq., and filed on 7/10/2020. It was deemed filed and served on 19/1/2022. The briefs were adopted on 7/3/2022.
BACKGROUND FACTS
The Appellant who was the Claimant at the lower Court claimed that she has the owner of the property lying and situate at No. 19, Idahosa Street, Behind Uselu Market, Uselu-Lagos, Benin City.
The Appellant further claimed that about the month of April in the year 2009, she contemplated selling the property due to the epileptic response to the payment of rent, and that the amount agreed for the sale of the property was initially N4,000,000 (Four Million Naira Only) which was to be paid within 3 months from the date of first payment and if not paid, an addition of One Million Naira will be paid thereby totaling the sum of N5,000,000 (Five Million Naira only) to be paid.
The Appellant claimed that the Respondent paid the total sum of N2,500,000.00 (Two Million, Five Hundred Thousand Naira) in different tranches and has since not paid any further sum, hence the institution of the suit.
The Respondent who was the Defendant at the lower Court claimed that he entered into an oral credit sale agreement with the Claimant to purchase her property for the sum of N3,000,000 (Three Million Naira only).
The Respondent also indicated that he was a tenant in the building of the Appellant at the time. The Respondent further claimed that he paid the total sum of N2,560,000 (Two Million, Five Hundred and Sixty Thousand naira only).
Issues were therefore joined by the parties and the case proceeded to trial whereupon Judgment was delivered by the learned trial Judge on 23/03/2016 which is now the basis of this appeal.
ISSUES FOR DETERMINATION: APPELLANT’S BRIEF
The Appellant donated two issues for determination in this appeal. They are:
1. Whether the trial Court rightfully decided the actual selling price of the property in dispute from the evidence and facts made available before it.
2. Whether a relief of specific performance can be granted to a party where there is no evidence/or sufficient evidence available to justify such grant.
ISSUE NO. 1.
From the available facts and evidence placed before the lower Court, did the trial Court rightly decide the actual selling price of the property in dispute?
It was submitted by the Appellant’s Counsel that the major issue in dispute at the trial Court was the actual price of sale of the property situate at No. 19 Idahosa Street, off Mela Motel Road, Benin City which price for sale was orally agreed on between the two parties to the transaction.
Counsel referred to the DW1 at the trial Court who testified when he got to the house where the negotiation for the sale of the house was being conducted, he met four other people which included the Respondent (Defendant) Respondent wife, Appellant (Claimant) and DW2. However, the DW2 contradicted this evidence when he testified under cross-examination that when she got to the negotiation meeting, she met four people including all but herself.
It was argued that the above contradictory evidence was very vital to the final decision of the case as the contradictory evidence should have gone a long way in determining the level of credibility of the evidence of the witnesses.
It was submitted that there was no precise evidence from the testimony of the Respondent and his witnesses at the trial Court as to the number of the persons present at the negotiation for the price of the house to be sold that the trial Judge at this stage when he held that he was swayed to believe the testimony of the Defendant witnesses that five persons were present at the negotiation for the amount that the house will be purchased. That the evidence of the Respondent’s witnesses particularly that of the DW1 and DW2 were not properly evaluated.
It was submitted that where the trial Court failed in its primary role of evaluation of evidence placed before it by the parties there is the need by the Appellate Court to interfere in order to arrest what will otherwise be a miscarriage of Justice. He referred to the case Atech Ltd. V. Mil Governor of Ogun State (2009) LRCN at (Pt. 632 JJ and 634 JJ).
It was submitted that the evidence was not properly evaluated and this affected the decision of the Court as that balance sum was not established by the Defendant and his witness. He urged the Court to set aside the grant of the relief of specific performance having been wrongly granted. He equally urged the Court to grant the Appellant the sum of N2,500,000:00 being the amount owed the Appellant by the Respondent in respect of the balance of the sale of the house to the Respondent.
Issue No.2 is whether a relief of specific performance could be granted to a party where there is no evidence/sufficient evidence available to justify such grant.
Counsel referred to the Counter claim of the Respondent for the sum of N440,000:00 which he claimed was what he owed the Appellant. The Appellant on the other hand claimed N2,500,000:00 Respondents Counsel urged the Court to note that the agreement between the parties as to the agreed sum to be paid for the property was an oral agreement. It was not in writing. He cited the case Best Mgens. Ltd. V. Black Wood Hodge Nig. Ltd. (2011) Vol. 194 LRCN 3v at page 55A.
That the position of the Court is that where there is request for the grant of a relief of specific performance, there must be evidence of compliance with the terms of agreement which in this case was an oral agreement between the parties which the Respondent failed to prove through himself or any of his witnesses. It was Appellant contention that the Respondent was in breach of the balance sum owed to the Appellant in respect of the sale of the property. He referred to the case NPA V. Lotus Plastic (2006) Vol. 134 LRCN 549. It was submitted that the Respondent must lead sufficient evidence to establish his counter-claim. Counsel also referred to the case New Breed Organisation V. Erhomosele (2006) Vol. 140 LRCN 2064 at 2045 to the effect that the grant of specific performance was a discretionary remedy.
Appellant’s Counsel prayed the Court to grant the relief of specific performance as prayed by the Appellant and order the Respondent to pay N2,500,000 being the amount owed the Appellant by the Respondent.
Counsel urged the Court to allow the appeal.
RESPONDENT’S ISSUES FOR DETERMINATION
1. Whether the lower Court was right when it held that it was swayed to believe that the agreed selling price is N3000,000.00 (Three Million Naira).
2. Whether the learned trial Judge was wrong to uphold the relief of specific performance of the Counterclaim of the Defendant.
3. Whether the lower Court properly evaluated the evidence of the parties and their witnesses and arrived at a correct conclusion.
On issue no. 1, was the lower Court right when it held that it was swayed to believe that the agreed selling price was N3,000,000.00? It was the Respondent’s Counsel submission that the Defendant’s witnesses evidence was not contradictory. That the Defendant’s witnesses were certain on the number of persons present during negotiation of the price and were also consistent on the agreed selling price which was N3,000,000.00 that there was no evidence called by the Appellant to sway the Court that the agreed selling price of the property was N5,000,000.00. That by credible evidence the Respondent was able to prove that the agreed selling price of the property was N3,000,000.00 through the witnesses. That none of the witnesses called by the Appellant witnessed the negotiation. That the evidence of the Appellant witnesses was hearsay evidence.
It was submitted that the only credible evidence available for the learned trial Judge to consider was that of the Respondent and his witnesses. He referred to the case of New Breed Organisation V. Erhomosele (2006) 140 LRCN 2064.
Furthermore that there were major contradiction in the selling price as stated by the Appellant. That at one breath she stated it was N5 Million and another breath N4 Million.
Counsel urged the Court to hold that the lower Court appropriately evaluated the evidence of the parties and their witnesses to believe that the selling price was N,3000,000.00 as stated by the Respondent. He equally urged the Court to resolve the 1st issue in favour of the Respondent.
Issue No. 2 is whether the learned trial Judge was right to grant the reliefs of specific performance of the Respondent.
It was the contention of the Respondent that the Appellant had to prove by preponderance of evidence that the Respondent still had to pay the sum of N2,500,000.00 to her.
That the parties agreed orally that the price to be paid for the house was N4,000,000.00 (Four Million) Naira. That nobody witnessed the transaction between the Appellant and the Respondent. Counsel urged the Court to uphold the decision of the lower Court.
He urged the Court to hold that the lower Court was right when it found that the Appellant was entitled to N420,000.00 specific performance. That the Appellant failed to prove that she was entitle to specific performance of N2,5000,000.00 having failed to established that the agreed selling price was N5,000,000.00 (N5 Million).
Issue 3 is whether the lower Court properly evaluated the evidence of the parties and their witnesses and arrived at a conclusion.
It was the submission of the Respondent’s Counsel that the lower Court properly evaluated the evidence place before it and arrived at a right decision.
That any contradiction in the evidence of the DW1 and DW2 as to the number of person present at the negotiation between the parties was not a material contradiction but a minor discrepancy which was incapable of reversing the Judgment of the lower Court. The contradiction must be shown to have occasioned miscarriage of Justice. Referred to John Ogbu V. State (2007) 3 FWLR 4189 at 4207 at 4209. It was further submitted that for a contradiction to be fatal it must relate to the substance. That trivial contradiction could not vitiate a trial.
He submitted that Exhibit ‘K’ was formulated by the Appellant. It was not signed by anybody. It was submitted that unsigned document is worthless and entitled to no weight in law.
Concluding, it was submitted that the appeal lacked merit and same be dismissed by this Court.
The above is the sum total of the submissions of the Counsel to the parties in their respective briefs.
Against the backdrop of the issues formulated by the parties and their respective submissions, this Court formulated its own issues as follows:
1. Whether upon the sum total of the evidence placed before this Court by the parties, it could be determined that the sum agreed on by the parties in respect of sale of the Appellant’s house was N5000,000.00 as claimed by the Appellant or N3,000,000.00 as claimed by the Respondent.
2. Whether the evidence adduced before the lower Court was evaluated by the Court before arriving at its findings and decisions.
3. Whether the learned trial Judge was right to award the relief of specific performance in this case.
In respect of the first issue, the fulcrum of the contention of the parties is the amount which the Appellant’s house was sold to the Respondent. While the Appellant claimed she sold the property to the Respondent in the sum of N5,000,000.00 out of which the Respondent made a part payment of the sum of N2,500,000.00 leaving a balance of N2,500,000.00 yet to be paid by the Respondent.
On the other hand, it was the contention of the Respondent, that the sum agreed on for the purchase of the house was N3,000,000.00 out of which the sum of N2,560,000.00 had been paid leaving the sun of N440,000.00 yet to be paid.
The ownership of the house prior to its sale is not in doubt. The Appellant who sold the house owned the property, which was sold to the Respondent.
It is also agreed upon that the Respondent had paid nothing less than N2,500,000.00 to the Appellant in respect of the sale of the Appellant’s house to him.
To determine the sum agreed upon as the purchasing price of the property in question, it is necessary revisiting the evidence of the witnesses and that of the parties. This is against the background of the evidence of the parties to the effect that the price agreed on was not reduced to writing but oral.
The Claimant (Appellant) stated that the arrangement between her and the Defendant was not credit sale agreement. There was never any agreement that the Defendant would pay installmentally. She stated that the original price was N5 Million and that the Respondent (Defendant) had paid the sum of N2.5 Million in 2009. That they never agreed on the sum of N3,000,000.00 as the price for the purchase of the house.
She insisted that the Respondent was owing her sum of N2.5 Million.
The DW1 Pullen Idehen testified that the Defendant (Respondent) made payment of N2.5 Million leaving a balance of N2.5 Million and the Respondent begged to pay installmentally through his (CW1) account which the CW1 obliged. He stated that during negotiation he was not a party to the transaction.
The CW2 – Pius Idemudia testified that he was not a party to the negotiation. That his wife briefed him and he later met the buyer. That his wife told him that the property was sold for N5 Million. He stated that the Respondent had only paid N2.5 Million.
From the evidence of the Claimant, it is the case that no person from the side of the Appellant witnessed the negotiation between the Claimant (Appellant) and the Defendant (Respondent) as to how much the parties agreed on at the negotiation.
The DW1 testified witnessing the negotiation between the parties regarding the sale of the house. He met four people when he got to the Appellant’s house. He was there when the Respondent gave cheques of N900,000.00 and N100,000.00 to the Appellant. He testified that the Claimant agreed to sell the house to the Defendant in the sum of N3,000,000.00 to which the Defendant agreed. That the transaction was a credit sales basis.
The DW2 testified she witnessed the negotiation. That she was amongst the five persons in the sitting room of the Appellant. That the Claimant agreed to sell the house in the sum of N3,000,000.00 and it was agreed that payment would be on installment basis. That the Defendant made an initial payment of N1,000,000.00 in two Cheques.
The DW3 testified that she witnessed the transaction between the Claimant and the Defendant who are Appellant and the Respondent respectively. That the amount agreed on by the Appellant and Respondent was N3,000,000.00 and not N5,000,000.00. The Defendant (Respondent) had paid the Claimant (Appellant) four times. There was no written agreement.
The Defendant testified that there was never a time he had agreement with the Appellant that the purchase price was N5,000,000.00. That there were five persons in his sitting room when the negotiation took place. They included his wife, Kingsley Ehighiator (DW1), Mrs. Regina Salami (DW2) Mrs. Evelyn Osayande (DW3), himself (Defendant/Respondent) and the Claimant/Appellant. That the whole transaction was a credit sale agreement. The Appellant could therefore not take back the property non claim ownership of it or vary the purchase price. That the Appellant was only entitled to a specific performance of the sum of N440,000 being the balance he was yet to pay the Appellant. That the Appellant made him to believe he had sold the property to him which made him to carry out extensive renovation of the property. That the Mr. Idemudia who claimed to be the husband of the Claimant (Appellant) came to his house saying that he bought the house two cheaply, and the house would be sold to him in the sum of N5 Million. That he was not given receipt for the sum of N2,560,000 he previously paid. He denied owing the Appellant the sum of N2.5 Million.
It is obvious from the above that no person from the side of the Appellant witnessed the negotiation. Not even her husband. The other witnesses of the Appellant derived their source of information was from the Appellant. They were not eye witnesses to the negotiation. They did not have a firsthand knowledge of what they were testifying about but relied mainly on what they were told by the Appellant.
It was the Appellant who told her witnesses that the sum agreed on was N5 Million. It is pertinent to note that the witnesses of the Respondent had a firsthand knowledge of what transpired at the negotiation. They were eye witnesses. They had personal knowledge. Not hear say evidence. They all testified that what was agreed as the price for the property was N3,000,000.00. Evaluation of witnesses evidence is not based on the number of witnesses but rather on that credibility and acceptability of the evidence. A witness who has firsthand knowledge of that which he testifies to will be in the “front line burner”. Any evidence which is not within a person’s knowledge will not be accredited as competent. See Omisore V. Aregbesola (2015) 15 NWLR (Pt. 1482) 1 at 324.
In the circumstance, I consider the evidence of the Respondent credible and his witnesses more reliable than that of the Appellant.
The credibility and the acceptability of the witnesses and their evidence arise from their first hand and personal knowledge of the deliberation, negotiation and the amount agreed upon as the price for the property.
It is in the light of the foregoing this Court is inclined to lean in favour of the decision of the lower Court which found and held as follows:
“On the whole, the testimonies of the Defendant, DW2 and DW3 were witnesses to this transaction and participated fully when negotiations were going on. Of all the witnesses to the transaction, it would appear that CW1 was the only one that did not hear of any amount that was agreed on as selling price of the property under dispute. He stated in his evidence that he became a party to the transaction when there was no document to sell the property.
I find also that the parties in this dispute are ad idem on the number of persons present when the negotiations took place. None has included anyone and none has equally excluded anyone. Surely a selling price was agreed while negations were concluded on the sale of Claimant’s property. What was the agreed price? On the preponderance of evidence of those present, I am minded and swayed to believe that the agreed selling price was N3,000,000.00 (Three Million Naira). On the whole, the testimonies of the Defendant, DW2 and DW3 has the stronger evidence, the most convincing force, superior evidentiary weight and better probative value and I am therefore sufficiently inclined to accept their testimonies as the true position concerning the issue of the agreed selling prince of the property. A decision as to what represents the truth depends on the position of the party that is more probable and on the preponderance of evidence. I therefore answer Defendant’s Counsel’s issue 2 as formulated in the affirmative by saying that the agreed selling price for the property was N3,000,000.00 (Three Million Naira). Defendant Counsel’s issue 3 queries whether the Claimant has proved the reliefs sought.”
This Court equally holds and resolve the 1st issue formulated by this Court to the effect that from the evidence placed before this Court by the parties particularly that of the Respondent (Defendant), it is determinable that the sum agreed on by the parties as the selling price for the property in question – that is the Appellant’s house was N3,000,000.00 as claimed by Respondent, not the sum of N5,000,000.00 asserted by the Appellant (Claimant). By extension, this Court holds that the lower Court rightly decided the actual selling price of the property in dispute from the evidence and facts placed before it to be N3,000,000.00.
I now proceed to consider whether the lower Court properly evaluated the evidence of the parties and their witness and arrived at a correct decision. I have gone through the assessment of the evidence of the witnesses by the learned trial Judge. Without mincing words, the trial Judge considered, the weight, the reliability, credibility and the acceptability of the evidence placed before the Court. The above factors were considered at the assessment of the facts and evidence before making the finding of facts. The lower Court also considered the evidence adduced in the light of its relevance, quality, probability and conclusiveness. These were the essential factors which the lower Court considered in the evidence. They are indicators of evaluation of evidence. I must state that this Court does not make a practice of interfering with the findings of a trial Court based on adequate and proper evaluation of the evidence before it. In this appeal, it has not been shown that the evaluation by the lower Court was based on wrong principles of law or was perverse. I therefore see no reason to interfere with the evaluation of the evidence and findings by the lower Court.
I find the learned trial Judge’s evaluation and findings of fact to be proper, adequate, correct, sound and unassailable. See FCMB V. Reg. Trustees of Moses Salihu Foundation (2018) LPELR 45160 (CA).
The 2nd issue is hereby resolved in favour of the Respondent.
The 3rd issue is whether the trial Court was right to have awarded the relief of specific performance in this case.
In the present matter, evidence was led establishing the fact that both parties agreed on the sum of N3,000,000.00 as the purchasing price for the property. In addition, both parties were ad idem to the fact that the Respondent had made a part payment of the sum of N2,500,000 to the Appellant leaving a balance of N500,000.00 (Five Hundred Thousand Naira) yet to be paid.
In this case, there is parole or oral agreement as to the sale of the property by the Appellant to the Respondent, the price of the property, amount paid to the Appellant the vendor of the property by the purchaser that is the Respondent. The cost price being N3,000,000.00 and the amount part paid to the Appellant being N2,500,000.00, the sum of N500,000 yet to be paid. Without doubt, there was a valid oral agreement between the parties in respect of the sale.
In the Supreme Court case of Ohiaeri V. Yussuf & Others. (2009) LPELR – 2361 (SC). It was held thus, on when the Court ought to grant specific performance:
“It has been established that there was an existing valid agreement between the parties in relation to the sale of the property in dispute, compiled with the facts and circumstances in which the Court can exercise its discretionary powers in equity to order specific performance of same, particularly where the agreement is ex-facie not illegal or offend public policy, the Court will definitely enforce same.”
Having held that the agreement between parties in relation to the property is valid and against the backdrop that the Respondent was yet to fulfill in his own side of the agreement fully, that is payment in full of the agreed sum, the Appellant has satisfied the condition precedent for the enforcement of the order of specific performance in her favour. I therefore hold the view that the lower Court was right in making the order of specific performance.
InVictor Eka V. Kuju (2013) LPELR 22124 (CA), Iyizoba JCA held:
“In contract for sale of property where part payment was paid, the law is that contract for purchase has been concluded and is final, leaving the balance outstanding to be paid. The contract for the sale and purchase are absolute and complete for which each party can be in breach for non-performance and for which an action can be maintained for specific performance.”
Arising from the foregoing, this Court upholds the order of specific performance made by the lower Court in respect of the contract of sale of the property known and situate at No. 19, Idahosa Street, off Mela Hotel Road, Benin City, behind Uselu Market, Uselu, Benin City in the sum of N420,000.00 (Four Hundred and Twenty Thousand Naira) only as found by the lower Court.
Issue No. 3 is hereby in favour of the Respondent and against the Appellant.
In the final analysis, this appeal fails, the judgment of the lower Court is affirmed.
The appeal is dismissed.
Parties to bear their respective cost.
UCHECHUKWU ONYEMENAM, J.C.A.: I have read before now the lead judgment just delivered by my learned brother, SAMUEL ADEMOLA BOLA, JCA. I agree with the reasoning and conclusion reached thereat.
I hereby dismiss the appeal for lacking in merit and affirm the judgment of the High Court of Edo State delivered on 23rd May, 2016 by J.O. Okeaya-Inneh, J. in suit NO. B/527/12.
I abide by the order as to costs.
JAMES GAMBO ABUNDAGA, J.C.A.: I read the draft of the judgment delivered by my learned brother, Samuel Ademola Bola, JCA. I agree with the reasoning and conclusion reached in the judgment, dismissing the appeal.
In the case of Help (Nig.) Ltd. v. Silver Anchor (Nig.) Ltd. (2006) LPELR-1361 (SC), it was held:
“The general principle of law is that specific performance is a 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 some defect such as informality, mistake or illegality which makes the contract invalid or unenforceable. See Chitty on Contracts Vol. 1, 26 Ed. P. 1202. Specific performance may also be refused in case of severe hardship to defendant. In the English case of Patel v. Ali (1984) Ch. 283, specific performance of a contract for the sale of a house was refused after a 4 year delay. In International Textile Industries (Nigeria) Limited v. Dr. Aderemi & Ors (1999) 8 NWLR (Pt.614) 268 this Court held that:- “To sue for specific performance is to assume that a contract is still subsisting and therefore to insist that it should be performed. That would mean that the plaintiff would not want it repudiated unless for any reason the Court was unable to aid him to enforce specific performance of it. He may then fall back on the remedy at common law for damages.” In Afrotec Tech. Services (Nigeria) Limited v. M.I.A & Sons Limited & Anor (2000) 15 NWLR (Pt.692) 730 at 790, this Court held that: “The fundamental rule is that specific performance will not be decreed if there is an absolute remedy at law in answer to the plaintiff’s claim, that is to say where the plaintiff would be adequately compensated by the common law remedy of damages.” Per KATSINA-ALU, JSC (Pp. 6-7, para E).
See the case of Ezenwa v. Oko (2008) LPELR-1206 (SC) p. 11 paras D – F.
In the case on appeal there is oral evidence on the preponderance which the trial Court believed that there was sale of the property by the appellant to the respondent; the cost price of the property was paid in part to the appellant, the vendor by the respondent.
In the circumstance, the Court was right on track to order specific performance in the trial Court’s belief that the respondent could not be adequately compensated in damages in the circumstances.
It is on this ground and the detailed reasons given in the lead judgment that I find this appeal lacking in merit and dismiss it. In consequence, I affirm the judgment of the lower Court.
Appearances:
C.E. Agbonwanegbe For Appellant(s)
A.M. Aleogho For Respondent(s)
