LADAN LIMAN TIRWUN v. MUSA IBRAHIM JAKKADA
(2013)LCN/6673(CA)
In The Court of Appeal of Nigeria
On Thursday, the 19th day of December, 2013
CA/J/353/2007
RATIO
WORDS AND PHRASES: CONTRACT
Generally, what is a contract as understood in legal parlance? In the case of “Best (Nig.) Ltd. vs. B.H. (Nig.) Ltd. (Nig) Ltd. (2011) 5 NWLR Pt.1239 p.95 @ 127, the Supreme Court defined contract to mean a legally binding agreement between two more persons by which rights are acquired by the party in return for acts or forbearances on the part of the other’ It is a bilateral affair which requires the ‘ad idem,of the parties. See Odutara vs. Agrersack (Nig.) Ltd. (2006) 18 NWLR pt.1012 p.470; Orient Bank (Nig.) Plc. vs. Bilante Int’l Ltd. (1997) 8 NWLR Pt.515 p.37 and S.G.B. (Nig.) Ltd. vs. Safa Steel and Chemical Manufacturing Ltd. (1998) 5 NWLR pt.548 p/168. For a contract to be validly made or entered into there must be:
(I) offer
(II) Acceptance
(III) Consideration
(IV) Intention to create legal relationship, and
(V) Capacity to enter into contract.
All the five (5) elements or ingredients must be present before there can be a valid contract in law. A contract cannot be legally entered into, if any of these elements or ingredients in missing or absent. see Amana suits Hotels Ltd. vs. P.D.P. (2007) 6 NWLR pt.1031 p.453 @ 476 Okubule vs. Oyagbora (1950) 5 NWLR pt.147 p.723 and P.T.F. vs. Uwama (2001) 5 NWLR Pt. 705 p.112.
The formation of a contract is therefore governed by the making of an offer by the offeror or and the acceptance of it by the offeree. The offer and the acceptance constitute an agreement if the two parties are at consensus “ad idem”, that is, the intention of both parties are same. Therefore, for a contract to be valid in law, there must be an offer and an acceptance. An acceptance of an offer may be in writing orally or by conduct or by other means agreed to or accepted to the parties. See Johnson Wax (Nig.) Ltd. vs. Sani (2010) 3 NWLR Pt.2010 p.235 @ 245. In Neka B. B. B. Manu Factains Co. Ltd. Vs. ACB Ltd. (2004) 2 NWLR pt.858 p.54 @ 554, the Supreme Court held that:
“It is trite law that for a contract to exist there must be an offer and an unqualified acceptance of the offer and a legal consideration. Indeed, there must be mutuality of purpose and intention. The two contracting parties must agree. In other words, there must be an offer and acceptance.”
In Johnson Wax (Nig.) Ltd. Vs. Sanni (2010) 3 NWLR Pt.1181 p.235 @ 245, this Court, per Dangban-Mensem, JCA, had this to say:
“It is trite law that the formation of contract is not governed by rigid but flexible rules namely, that there must be a definite offer by the offeree and been communicated to the other party called the offeror who accepts the offer unless the offeror, the first party, dispenses with such communication.” Per IBRAHIM SHATA BDLIYA, J.C.A.
WHETHER A CONTRACT MUST BE WRITING
A contract or an agreement to do an act need not be in writing. It could be either, in writing, oral or both depending on the circumstances of each case. But where the contract or agreement is written in a document the Court cannot look beyond that written document to determine what its express terms are. Where it is an oral contract or agreement the ascertainment of its terms is purely a question of facts. See A.G. River State vs. A.G. Akwa Ibom State (2011) 8 NWLR p.1248 p.31 @ 109. In U.T.C. (Nig.) Plc. vs. Philips (2012) 6 NWLR pt.1255 p. 136 @ 163, this court per Peter-Odili, JCA held that, an agreement or contract can be made or entered into in writing or orally or by conduct of the parties from which the terms of the contract or agreement can be inferred. See also Ironbor vs. cross River Basin Rural Dev. Authority (2003) FWLR Pt.165 p.377. Per IBRAHIM SHATA BDLIYA, J.C.A.
WHEN IS A PIECE OF EVIDENCE SAID TO BE CONTRADICTORY TO ANOTHER EVIDENCE?
The law is well settled that a piece of evidence is said to be contradictory to another evidence when it asserts or affirms the opposite or where two sets of evidence are themselves inconsistent to each other or they are mutually repugnant and cannot both stand or be true. The acceptance of one set of evidence implies the rejection of the other set that is to say, two sets of evidence are inconsistent and therefore contradictory when they are in essence mutually exclusive such that if one is true, the other must be false, because the two cannot both be true or correct, but both may be false. See Isiekwa Vs. The State (1999) 9 NWLR Pt.617 p.43 @ 49 and Stephen Vs. State (2009) All FWLR Pt.49 p.962 and Asanya Vs. State (1999) 3 NWLR Pt.180 p.422. Per IBRAHIM SHATA BDLIYA, J.C.A.
JUSTICES
TIJJANI ABDULLAHI Justice of The Court of Appeal of Nigeria
ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria
IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria
Between
LADAN LIMAN TIRWUN Appellant(s)
AND
MUSA IBRAHIM JAKKADA Respondent(s)
IBRAHIM SHATA BDLIYA, J.C.A. (Delivering the Leading Judgment): Before the Bauchi High Court of Justice, presided by Justice Sulaiman Darazo, chief Judge, (hereinafter referred to as the lower court), the respondent who was the plaintiff sued the appellant who was the defendant claiming as follows:
a). A DECLARATION that the Plaintiff is entitled to the assignment of property comprised and covered by C of O No.BA/5887.
b). AN ORDER of specific performance to effect the assignment.
c). A DECLARATION that the repudiation of the contract by the Defendant by refusing to accept the balance of purchase price after he collected the C of O from the Bank without the knowledge of Plaintiff is wrongful and void.
d.) A DECLARATION that any purported sale, transfer assignment including the Defendant’s occupation of the property is equally null and void.
e). A PERPETUAL INJUNCTION restraining the Defendant, his agents, servant, privies or otherwise from selling, leasing, assigning or dealing or alienating the property to any other person.
f). The sum of N100,000.00 for every day of default from 1/7/92 when full payment was made to defendant.
9). AN ALTERNATIVELY the sum of N1,000,000.00 Special damages for breach of contract.
h). The Plaintiff claims the sum of N64,000.00 Cost of rent N500,000.00 escalation cost refund with interest of 20% p.a.
After filing and exchange of pleadings the suit went to trial whereby the parties called witnesses and tendered exhibits to prove their respective case. Learned counsel to the parties addressed the court. After reviewing the pleadings and the evidence adduced thereon, the learned trial judge entered his judgment in favour the respondent against the appellant. Dissatisfied with the judgment, the appellant by a notice of appeal dated 11th and filed on 20th July, 2007, challenged the said judgment on three (3) grounds of appeal.
The background facts of the case could be summarized thus. Sometime in 1992 the appellant decided to sell his house situate in Unguwar Dawaki Bauchi town of Bauchi State. The respondent agreed to buy the house. They agreed at the sum of N64,000.00 (Sixty Four Thousand Naira) as the price of the house per Exhibit ‘A’. The respondent deposited the sum of N20, 000.00 (Twenty Thousand Naira) as initial payment. The balance of the N44,000.00 (Forty Four Thousand Naira) to be paid within two (2) weeks which was later extended by one (1) week. For various reasons the respondent was unable to pay the balance of the N64,000.00 (sixty Four Thousand Naira). When the appellant could not get the balance of the N64,000.00 (sixty Four Thousand Naira) he revoked the sale agreement. The respondent was not satisfied with the revocation of the sale of the house; he then instituted an action before the lower court seeking for an order of specific performance of the agreement for the sale of the house to him. The lower court, after the hearing of the case’ entered judgment in favour of the respondent against the appellant.
After filing his appeal before the lower court on the 20th of July, 2007, the appellant filed his brief of argument before this court on the 17th of April, 2012. The respondent filed his brief of argument on the 25th of July, 2012. A Reply brief was filed by the appellant on the 15th of March, 2013. The appeal came up for hearing before this court on the l8th of November, 2013, whereat the learned counsels to the parties, adopted their respective briefs of argument.
Abejeme Esq., who settled the appellant’s brief of argument identified the brief, wherein two (2) issues have been distilled from the 2 grounds of appeal. Learned counsel did urge the court to allow the appeal, set aside the judgment of the lower court. Jibrin Esq., identified the respondent’s brief and intimated the court that four (4) issues, were distilled from the grounds of appeal. Learned counsel applied to the court for an order striking out Issues (iii) and (iv) of the respondent’s brief of argument. Learned counsel to the appellant did not object. The court accordingly granted the order sought and struck out Issues (iii) and (iv) of the respondent’s brief of argument. The court has been urged to dismiss the appeal and affirm the judgment of the lower court.
At this juncture let me observe that there are only two (2) grounds of appeal as per the notice and grounds of appeal dated 17th of July and filed on 20th July, 2007. See pages 118 – 120 of the record of appeal. The appellant, in his brief of argument formulated 2 (two) issues for determination though did not indicate specifically to which ground of appeal each was tied to or linked with. However, from the particulars of the grounds of appeal (see pages 118 – 119) the court is of the view that Issue I was tied or linked to ground (1) of the grounds of appeal. The Issue 2 (two) has also been tied to or linked to ground 2 of the grounds of appeal. The issues for determination in the appeal are therefore those formulated in the appellant’s brief of argument which have been adopted by the respondent in his brief. They are as follows:
(i) Whether the trial (lower) court was right to have granted the respondent’s claim for specific performance when the evidence of the respondent and his witnesses were conflicting and contradictory on material issues and which contradictions were not resolved by the said court?
(ii) Whether the trial court (lower court) was right to have granted the respondent’s claim for a decree of specific performance when the respondent did not prove his entitlement to it?
In my view the two issues are interwoven or dovetailed such that the resolution of one would substantially resolve the other. For this reason, the two issues would be taken simultaneously and resolved in this judgment in order to see if the appeal can succeed, in part, or in whole. On pages 115 to 116 of the record of appeal, the learned trial judge of the lower court found and held thus:
“I have carefully reviewed the statement of claim as amended as well as the statement of defence as amended. I have briefly reviewed evidence of witnesses and addresses of counsels. The issue is of sale of a house between the plaintiff and the defendant.
The plaintiff offered to buy the house for the sum of N64,000.00. He was given N20,000.00 part-payment and the balance was to be paid within two weeks.
He could not pay but rather requested for C of O. The Defendant claimed that he did not agree with the sale but yet he accompanied the plaintiff to the 1st bank where plaintiff paid the balance on the mortgage amounting to N8,200.00.
He was also given N3000.00 or N1000.00. If he was no more interested or had changed his mind why did he allow the plaintiff to pay the balance of his mortgage and secretly returned alone to collect his C of O.
The plaintiff first of all breached the initial agreement but I agree with M. H. Yakubu that by his conduct he had continued to treat the contract as subsisting.
The plaintiff’s failure to pay until after 10 months after paying half on the pre that he went to Mecca is not completely acceptable as Hajj operations do not last more than one month.
Exh. B however said he was asked to pay the sum of N35,000.00 and collect the C of O but there is not evidence that he paid the money to the U A the money to court and defendant had collected same. Having however collected half of the money I hold the view that Defendant in an effort to be smart had actually concluded the contract. It is now whether I can order specific performance of contract when there is no such evidence of payment of the balance before me or any evidence that the balance was paid in any court. While issue was of essence the fact that Defendant agreed to go with Plaintiff to 1st Bank to pay N8,200.00 to clear the mortgage of the house and also collected C of O showed the transaction subsist, I do not wish to review any further but rather hold that the Defendant has sold his house to plaintiff for 64,000.00 since 1992.”
Was the learned trial judge justified in coming to the decision reproduced supra? Or put it differently, are there credible evidence adduced before the lower court to sustain the decision arrived at supra. Abejeme Esq.,for the appellant submitted that the evidence adduced by the respondent before the lower court to prove his case are grossly conflicting and contradictory on material points. The contradictory and conflicting evidence are:
(i) one important issue that arose before the trial court was whether the Respondent complied with the terms contained in Exhibit “A, i.e. the agreement written by the Respondent to pay the balance of N44,000.00 on the house on 24/06/92 that is within three (3) weeks of making Exhibit “A” after paying N20,000.00 deposit on this 1st PW Abdullahi Adamu said the period between the time the Respondent made the first payment and when Appellant refused to collect the balance was about three (3) months – page 23 of the record.
While 2nd PW Shehu Muhammad Dawaki Bauchi in his own evidence said the Respondent did not honour the agreement which he wrote and promised to pay the balance within 2 weeks – page 27 of the record. Respondent himself as 3rd PW contradicted himself and 1st PW when he said at page 31 as follows: “Between the time of payment N20,000.00 it took not less than 3 months before the final settlement. I brought the cheque 10 months after the first payment.” This piece of evidence contradicted his own evidence in chief at page 29 where he said as follows: “After two weeks, Alh Ali came back from Saudi Arabia and gave me a cheque of N44,000.00 which, was to mature after 21 working days… we agreed that the money would be paid after the said 21 working days and there was no any argument or anything…”
(i) Another area of conflict is whether the Respondent initially agreed to pay the price of N64,000.00 at once or not. This is a material point especially in a claim for specific performance where claimant has to come with clean hands. At page 23 PW1 said Jakada that is; the Respondent agreed to pay the money at once. PW2 said there was no agreement for payment of the money in bulk. See page 26, Pw3 the Respondent first said, “The conditions is that I shall pay him his money completely and he is to give me, certificate and vacate the house.”- see page 29 but at page 30 he changed to say “Alhaji Ladan did not say that I should pay him in bulk.”
(ii) Another area of conflict still is whether the Respondent bought the house for himself as he claimed or for one M. Ali PW1 claimed the house was bought for one M. Ali who put his brother M. Usman in the house’ PW2 on the other hand, claimed that the Respondent bought the house for one M. Fari.
(iii) Another area of conflict is in the evidence of PW2. At page 26 of the record, the witness first denied any knowledge of the existence of Exh. “A” which he signed as a witness, but at same page 26 last line, changed to say that he was aware of the agreement.
It was his further submission that though these contradictions and conflicts were pointed out by learned counsel;the lower court did not give due consideration to them,especially their effect on the credibility of the respondent’s case. Where there are contradictions and or conflict in the evidence of witnesses it was submitted, the trial Court ought to have considered same and hold that such evidence was unreliable. The case of Ibekendu v. Ike (1993) 7 SCNJ p.50 @ 52 was cited to buttress the submission supra. Learned counsel was of the view that had the learned trial judge of the lower court adverted his mind to these contradictory and conflicting evidence,he would have arrived at a different decision. The court has been urged to resolve Issue 1 in favour of the appellant.
On Issue 2, it was contended that the respondent did not adduce evidence to be entitled to the order of specific performance. It was learned counsel’s submission that a decree of specific performance of a contract is granted on the proper exercise of the discretion of the trial judge. That it is only granted where the award of general damages for the breach of the contract would be inadequate having regard to the facts and the circumstances of the case. On pages 6 – 9 of the brief,learned counsel enumerated the guiding principles which must be observed in granting an order of specific performance of a contract and cited several decided cases to buttress his submissions. That having found on the evidence that there had been undue delay in the payment of the balance of the N64,000.00 an award of damages would have been most appropriate than the order of specific performance. The case of Uni-Insurance Coy. Ltd. vs. Hammond Nig. Ltd. (1988) pt.565 @ 340, among other, were cited to reinforce the submissions supra.
On pages 10 – 11 of the brief of argument, learned counsel contended that the respondent’s conduct clearly established that he was not free from blame for the delay in the execution of the sale agreement having not paid the full sum of N64,000.00 as agreed in the contract. In such a situation, learned counsel adumbrated,the respondent was not entitled to an order of specific performance as granted by the lower court.
The case of Nlewedim v. Uduma (1995) 30 LRCN p. 113 @ 116 was cited in reinforcement of the submissions supra. In conclusion, learned counsel summarized his submissions on the two (2) Issues thus:
a) It is very clear that the trial court did not consider and reach a legal conclusion on the numerous material conflicts, contradictions and inconsistencies in the evidence of the Respondent and his witnesses.
b) All the conditions required to be met by the Respondents to be entitled to a decree of specific performance were not met, as he did not perform his own part and his hands were not clean. This is abundantly substantiated at page 116 of the record of proceedings of the trial court where the learned trial judge ordered the Respondent to pay to the Appellant the balance sum of N35,000.00 to make up the sum of N64,000.00 the sales price of the house sold to the respondent.
The court has been urged to resolve the Issues in favour of the appellant,and set aside the judgment of the lower court.
For the respondent, Jibrin Esq., while submitting on Issue I, contended at the lower court was right in granting the claim for specific performance of the sale agreement because the evidence before it had proved the existence of such a contract. That the evidence before the lower court was not contradictory, rather it was cogent and reliable. On pages 3 to 5 of the brief of argument, learned counsel referred to specific portions of the evidence of Pw1, 2, 3 and contended that the following have been established
a. That there was a transaction for the sale of the house in question between the Appellant and the Respondent.
b. That the value of the house as sold to the Respondent is N64,000.00 (Sixty Four Thousand Naira Only).
c. That on apart of the Respondent, he committed himself to the transaction by paying as part payment, the sum of N20,000.00 (Twenty Thousand Naira Only) of the total value of the house.
d. That the Respondent promised to pay the remaining of N44,000.00 (Forty Four Thousand Naira Only) within two weeks.
Learned counsel cited and relied on a number of decided authorities in reinforcement of his submission supra.
On Issue 2, it was submitted that the granting of the order of specific performance was justified in view of the appellant’s acceptance of N20,000.00 (Twenty Thousand Naira) and his going to the Bank with the respondent to settle the mortgage debt which was outstanding against the appellant in order to retrieve the Certificate of Occupancy in respect of the house. It was further submitted that the conduct of the appellant after the initial payment of N20,000.00 (Twenty Thousand Naira) coupled with going to the Bank with the respondent to settle the mortgage debt of N8,200.00 (Eight Thousand Two Hundred Naira) sufficiently established the existence of a valid sale agreement. Learned counsel cited and relied on several decided cases on pages 7 – 8 of the brief of argument to buttress his submissions supra. Abejeme Esq., for the appellant responded to the submission of the respondent’s counsel in his Reply brief and adumbrated that the submission therein were not based on credible evidence. The court was urged to disregard the cases cited in the respondent’s brief of argument for they are not relevant to the issues raised in the appellant’s brief of argument. The court was urged to resolve Issues I and 2 against of the appellant dismiss the appeal and affirm the judgment of the lower court.
The evidence adduced by the respondent in support of his claims against the appellant are contained on pages 22 (Pw1); 25 (Pw2); and page 28 (Pw3) of the record of appeal. On pages 3 to 5 of the appellant’s brief of argument the alleged contradictions and conflicts in the evidence of the witnesses for the respondent have been particularized vividly. Even if there are discrepancies or conflicts in the testimony of these witnesses, they are not on material issues or are not substantial to dislodge the contention of the respondent that there was an agreement entered into with the appellant for the sale of the house in dispute. At this juncture, I think it is pertinent to know when one piece of evidence is contradictory to another piece of evidence or when is one set of evidence in conflict with the other. The law is well settled that a piece of evidence is said to be contradictory to another evidence when it asserts or affirms the opposite or where two sets of evidence are themselves inconsistent to each other or they are mutually repugnant and cannot both stand or be true. The acceptance of one set of evidence implies the rejection of the other set that is to say, two sets of evidence are inconsistent and therefore contradictory when they are in essence mutually exclusive such that if one is true, the other must be false, because the two cannot both be true or correct, but both may be false. See Isiekwa Vs. The State (1999) 9 NWLR Pt.617 p.43 @ 49 and Stephen Vs. State (2009) All FWLR Pt.49 p.962 and Asanya Vs. State (1999) 3 NWLR Pt.180 p.422.
Are there contradictions or conflicts in the evidence of the witnesses for the respondent as canvassed by the learned Counsel to the appellant. I have dispassionately scrutinized the evidence of PW1, PW2 and PW3 as contained on pages 22, 25 and 28 of the record of appeal. Agreed, there might be discrepancies in the testimonies of PW1, PW2 and PW3, but it is not unexpected to have discrepancies in the testimony of witnesses provided the discrepancies are not on material issues in the dispute. It is normal for one person to see or observe an event in a different way from another person. It is natural as human beings not to be able to narrate an event or incident in the same way or as another person might have seen or observed same event or incident. Indeed, if two or more persons testify exactly on same incident or event, if it is probable that such evidence might have been fabricated or adulterated. It is in view of the foregoing that I am of the view that even if there are discrepancies or conflicts in the evidence of PW1, PW2 and PW3 such are of no significance in assessing the credibility of the evidenced adduced to prove the existence of a Sale agreement for a house by the appellant and the respondent. The discrepancies or conflicts can at best be regarded as inconsequential to the formation of the agreement for the sale of the house. In my view, the trial court, notwithstanding the conflicts pointed out by the learned counsel to the appellant, was right in arriving at its decision that there was a valid sale agreement between the appellant and the respondent.
On 2nd issue whether the lower court was right to have granted the respondent’s claim for a decree of specific performance of the sale agreement, it is apposite at this juncture to consider whether there was a contract agreement entered into for the sale of the house in dispute, and secondly, the principles of law guiding the court in granting specific performance of an agreement or sale agreement as in this instant case.
Generally, what is a contract as understood in legal parlance? In the case of “Best (Nig.) Ltd. vs. B.H. (Nig.) Ltd. (Nig) Ltd. (2011) 5 NWLR Pt.1239 p.95 @ 127, the Supreme Court defined contract to mean a legally binding agreement between two more persons by which rights are acquired by the party in return for acts or forbearances on the part of the other’ It is a bilateral affair which requires the ‘ad idem,of the parties. See Odutara vs. Agrersack (Nig.) Ltd. (2006) 18 NWLR pt.1012 p.470; Orient Bank (Nig.) Plc. vs. Bilante Int’l Ltd. (1997) 8 NWLR Pt.515 p.37 and S.G.B. (Nig.) Ltd. vs. Safa Steel and Chemical Manufacturing Ltd. (1998) 5 NWLR pt.548 p/168. For a contract to be validly made or entered into there must be:
(I) offer
(II) Acceptance
(III) Consideration
(IV) Intention to create legal relationship, and
(V) Capacity to enter into contract.
All the five (5) elements or ingredients must be present before there can be a valid contract in law. A contract cannot be legally entered into, if any of these elements or ingredients in missing or absent. see Amana suits Hotels Ltd. vs. P.D.P. (2007) 6 NWLR pt.1031 p.453 @ 476 Okubule vs. Oyagbora (1950) 5 NWLR pt.147 p.723 and P.T.F. vs. Uwama (2001) 5 NWLR Pt. 705 p.112.
The formation of a contract is therefore governed by the making of an offer by the offeror or and the acceptance of it by the offeree. The offer and the acceptance constitute an agreement if the two parties are at consensus “ad idem”, that is, the intention of both parties are same. Therefore, for a contract to be valid in law, there must be an offer and an acceptance. An acceptance of an offer may be in writing orally or by conduct or by other means agreed to or accepted to the parties. See Johnson Wax (Nig.) Ltd. vs. Sani (2010) 3 NWLR Pt.2010 p.235 @ 245. In Neka B. B. B. Manu Factains Co. Ltd. Vs. ACB Ltd. (2004) 2 NWLR pt.858 p.54 @ 554, the Supreme Court held that:
“It is trite law that for a contract to exist there must be an offer and an unqualified acceptance of the offer and a legal consideration. Indeed, there must be mutuality of purpose and intention. The two contracting parties must agree. In other words, there must be an offer and acceptance.”
In Johnson Wax (Nig.) Ltd. Vs. Sanni (2010) 3 NWLR Pt.1181 p.235 @ 245, this Court, per Dangban-Mensem, JCA, had this to say:
“It is trite law that the formation of contract is not governed by rigid but flexible rules namely, that there must be a definite offer by the offeree and been communicated to the other party called the offeror who accepts the offer unless the offeror, the first party, dispenses with such communication.”
A contract or an agreement to do an act need not be in writing. It could be either, in writing, oral or both depending on the circumstances of each case. But where the contract or agreement is written in a document the Court cannot look beyond that written document to determine what its express terms are. Where it is an oral contract or agreement the ascertainment of its terms is purely a question of facts. See A.G. River State vs. A.G. Akwa Ibom State (2011) 8 NWLR p.1248 p.31 @ 109. In U.T.C. (Nig.) Plc. vs. Philips (2012) 6 NWLR pt.1255 p. 136 @ 163, this court per Peter-Odili, JCA held that, an agreement or contract can be made or entered into in writing or orally or by conduct of the parties from which the terms of the contract or agreement can be inferred. See also Ironbor vs. cross River Basin Rural Dev. Authority (2003) FWLR Pt.165 p.377.
The evidence adduced by the respondent are per FM/l, PW2 and PW3 which can be found on pages 22, 25 and 28 of the record of appeal. The evidence of the appellant can also be found on pages 33 and 46 of the record of appeal. There is no doubt the evidence before the lower court have established the formation of contract agreement for the sale of the house in dispute. Indeed, the appellant has not denied the existence of the sale agreement, save that it was breached by the respondent when he failed to pay the sum of N64,000.00 being the price of the house within the period agreed to in Exhibit ‘A’. However, the conduct of the appellant by receiving the part payment of N20,000.00 and the going to the Bank in the company of the respondent to off-set the debt award to the Bank under a Mortgage deed, clearly are credible evidence that the appellant at that time still considered the sale agreement subsisting, otherwise he would not have acted as he did. The law is trite that when a person by his conduct has done any action which led another person to believe the existence of anything or fact, that, person cannot be heard to deny it or that he did not intend the other to rely on such act or omission which led the other person to believe the existence of certain things. In the case of Nigerian Bank of Commerce and Industry v. Integrated Gas Ltd. (2005) 21 NSLR p.240 @ 243, the Supreme Court held that:
“if one party by his conduct leads another to believe that the strict rights existing under a contract will not be insisted upon, intended that the other should act on the believe and he does act on it, then the party will not be allowed to insist on the strict right when it would be inequitable for them so to do.”
Again, in case of the M.V. Lupex Vs. Nigerian Overseas Chartering and Shipping Ltd. (2003) 14 NSCQR P.801 @ 805, the Supreme Court said thus:
“the law is also settled that the mere fact that a dispute of a nature eminently suitable for trial in a Court is not a sufficient ground for refusing to give effect to what the parties have,by a contract expressly agreed to”.
Having regard to the pronouncement of Supreme Court in the cases cited supra, the conducts of the appellant after the expiration of the period agreed upon for the full payment of the sum of N64,000.00 (Sixty Four Thousand Naira) being the price of the house, the said agreement must be taken to be in existence and valid, and the appellant cannot opt out of the contract agreement per Exh. ‘A’. Having resolved, Issue 1 in favour of the respondent that there was valid and subsisting contract agreement for the sale of the house (notwithstanding the failure of the respondent to have paid the full price of the house) was the learned trial judge right when he ordered specific performance of the agreement between the appellant and the respondent for the sale of the house.
The general principles of law is that specific performance is a discrepancy remedy.
The exercise of this discretion must be based on principles of a valid, subsisting and enforceable contract. See Help (Nig.) Ltd. vs. silver Anchor (Nig.) Ltd. (2006) 5 NWLR Pt.972 p.196 @ 208 and Chitty on contract Vol. I 26th Edition P.1202. A contract to be enforced by the Court must as a general rule, be mutual, that is to say, such that at the time it was entered into, could have been enforced by the parties against each other. See Nigerian Land and seafood Co. Ltd. v. Road Ship Eng. Foundry Ltd. & Anor. (1987) 1 NWLR pt.191 p.197. In Ngwu v. Nnaji (1951) 5 NWLR pt.194 p.18 this court had said:
“In determining whether specific performance must be decreed or not, the court should examine very carefully the competing interests of the parties. These are the interest of the party who wants the relief to benefit from the raw terms of the contract and that of the opponent to pay damages in lieu. In the balancing exercise, the court is exercising its equitable jurisdiction and this it must invoke to the egalitarian advantage of the parties. Let the only discrimination in the matter be the factual position which the court cannot manufacture in favour of one of the parties to the disadvantage of the other party. In determining the competing interests, the court should also take into consideration the very nature of the contract in terms of its compelling character and whether from the entire transaction, the contract could be specifically performed”.
I have examined the facts of the case per the pleadings of the parties and the evidence adduced before the lower court vis-a-vis the contract and the conduct of the parties related thereto. I have also considered the competing interest of the parties in order to decide whether the decision of the lower court in ordering the decree of specific performance was right or not. I cannot but agree with the learned trial judge having regard to the conduct of the appellant relating the contract agreement for the sale of the house. Consequently, I hold that the lower court correctly and justifiably made the order of specific performance. In the result, I resolve issues 1 and 2 against the appellant. The net result is that the appeal fails for it lacks merit. The appeal is hereby dismissed. I affirm the judgment of the lower court. I make no order to costs.
TIJJANI ABDULLAHI, J.C.A.: I have had the privilege of reading in draft the lead judgment of my learned brother, Ibrahim Shata Bdliya, JCA just delivered.
His Lordship has meticulously treated the live issues that call for determination in this appeal. I have nothing more useful to add. I adopt his reasoning and conclusions as mine. I too dismiss the appeal and make no order as to costs.
ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I have before now read the lead Judgment of my learned brother, Bdliya, JCA. I fully agree with it and have nothing more to add. I too would dismiss this appeal and I accordingly do so. I also abide by all the consequential orders of His Lordship, including the order on costs.
Appearances
D. M. Abejeme Esq.For Appellant
AND
Jibrin S. Jibrin Esq.For Respondent
