LEADER JOSEPH ESENOWO V. MISS COMFORT OKON SAM
(2013)LCN/6745(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 28th day of May, 2013
CA/C/138/2010
RATIO
WHETHER THERE MUST BE AN EXPRESS AGREEMENT FOR A CONTRACT TO BE BINDING ON PARTIES
The law is that for a contract to be binding on the parties, they must express their agreement in a form, which is sufficiently certain for the court to enforce. Orient Bank Plc vs. Bilante International Ltd (supra)
For a contract to be binding, there must be an unmistaken and precise offer and an unconditional acceptance of the terms mutually agreed upon. See Odutola V. Papersack (Nig) Ltd (2006) 18 NWLR pt 1012 page 470, Sona Brew Plc vs. Peters (2005) 1 NWLR pt 908 page 478, Ezenwa vs. Ekong (1999) 11 NWLR pt 625 page 55. Per UZO I. NDUKWE-ANYANWU, J.C.A
WHETHER A COURT CAN FORMULATE ISSUES FOR DETERMINATION FOR PARTIES
The main reason a court sometimes articulates issues for parties is to narrow the issues in controversy between the parties in the interest of clarity, accuracy and brevity. A court can also formulate issues for determination when the parties have not adequately covered the issues in controversy. See A. Int’l Ltd v. S. R. Int’l Ent. Ltd (2010) 13 NWLR pt 1211 page 270, Okoyeukwu V. Okoye (2009) 6 NWLR pt 1137 page 350. Per UZO I. NDUKWE-ANYANWU, J.C.A
WHETHER A JUDGMENT DELIVERED OUTSIDE THE PLAUSIBLE PERIOD OF THREE MONTHS WILL BE RENDERED A NULLITY
Although a court ought to deliver its judgment within 3 months but it is permissible to deliver judgment outside this period for plausible reasons. Korobofei V. Obubo (1999) 9 NWLR pt 620 page 655. Delivering a judgment outside the prescribed 3 months would not ordinarily render the judgment a nullity unless the appellant could show that the delay had occasioned a miscarriage of justice. BCC Plc V. Sky Inspection (Nig) Ltd (2002) 17 NWLR pt 795 page 86, Mika’ilu v. State (2009) 5 WRN Page 74. Per UZO I. NDUKWE-ANYANWU, J.C.A
Before Their Lordships
UZO I. NDUKWE-ANYANWUJustice of The Court of Appeal of Nigeria
JOSEPH TINE TURJustice of The Court of Appeal of Nigeria
ONYEKACHI A. OTISIJustice of The Court of Appeal of Nigeria
Between
LEADER JOSEPH ESENOWOAppellant(s)
AND
MISS COMFORT OKON SAMRespondent(s)
UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Cross River State sitting in Calabar delivered on 18th February, 2010 in suit No HC/285/2000. The appellant in this appeal was the Plaintiff in the court below. He sued the Respondent as Defendant and claimed as follows in his Amended Statement of Claim dated 23rd June, 2003.
(i) A declaration that the only binding, valid and legally enforceable contract between the parties herein is that wherein the Plaintiff was to pay N200,000.00 by unagreed installment and no time bar to the Defendant for the purchase of No.13 Edet Eyo Crescent Calabar.
(ii) A declaration that parties herein having mutually agreed that Defendant was to sell the property at No. 13 Edet Eyo Crescent, Calabar to the Plaintiff for N200,000.00 payable by installment, the unilateral and capricious increase of the purchase price by N500,000.00, by the Defendant when Plaintiff had paid a total of N171,000.00 was in extreme bad faith, capricious, unconscionable and wrongful.
(iii) A declaration that the unilateral and capricious increase of the purchase price by N500,000.00 after parties had mutually agreed for N200,000.00 constitutes a fresh offer and there being no offer by the Defendant as to how the said N500,000.00 was to be paid by the Plaintiff, Plaintiff was entitled to accept to pay same by instalments and having refused the offer for instalmental payment by the Plaintiff no valid or legally enforceable contract to pay N500,000.00 exist.
(iv) A declaration that parties agreed that the contract sum of N200,000.00 for the purchases of No. 13 Edet Eyo Crescent, Calabar was to be by installment with no time limitation and in any event the Defendant having by conduct accepted the said instalmental payment is not entitled to resile from same
(v) An order of Specific performance of the original contract by the Defendant by compelling the Defendant to perfect the assignment of the property situate at No.13 Edet Eyo Crescent, Calabar to the Plaintiff by signing and or executing a Deed of legal assignment of the aforesaid property the full purchase price as mutually agreed by the parties in the sum of N200,000.00 having been paid.
(vi) A declaration that the Plaintiff is entitled to the Statutory Right of Occupancy of the property known as and situate at No. 13 Edet Eyo Crescento Calabar.
(vii) And Order of perpetual injunction restraining the Defendant by herself, her servants, agents and/or privies from interfering with the Plaintiff’s ownership, quiet possession, use and occupation of the said No. 13 Edet Eyo crescent, Calabar.
The Appellant had entered into an oral agreement with the Respondent to buy her house in No. 13 Edem Eyo Crescent Calabar, in 1993 at a price of N200,000.00. The Appellant paid two separate instalments totaling N64,000.00 Exhibit A & A1. He lost his wife and did not pay anything till 1995 when he paid three instalments Exhibit B, B1 and B.2. The Respondent after persistent demands for the balance wrote Exhibit A dated 1st April, 1998 to the Respondent reviewing the sale price from N200,000.00 to N700,000.00. This the Appellant agreed for the delay in payment of the original contract price.
However, the Respondent insisted that she wants an outright payment or at the worst two instalments. The Appellant refused and insisted on instalmental payment over a period of five years. At this point, the relationship broke down. The Respondent thereafter gave the Appellant an option of paying for rent from 1993 till he gives up possession. The Appellant tabulated the rent, increases and communicated it to the Appellant. The Appellant being dissatisfied filed a suit in the High Court.
The Respondent in his defence in the court below filed on 8th April, 2004 his Statement of Defence and counterclaimed as follows:
1. A declaration that the defendant is the owner and entitled to Statutory Right of Occupancy in respect of the defendant of her property situate and known as No. 13 Edet Eyo Crescent, Calabar.
2. A Declaration that the agreement to sell to Plaintiff by defendant of her property situate and known as No. 13 Edet Eyo Crescent, Calabar in 1993 had been frustrated as the Plaintiff could not pay the agreed purchase price of N200,000.00 five years after, which was not contemplated by the Defendant and was still unable to pay the varied agreed purchase price of N700,000.00 in 1998.
3. A declaration that the Plaintiff is not entitled to Statutory Right of Occupancy of Defendant property situate and known as No. 13 Edet Eyo Crescent, Calabar as Defendant has not sold same to the Plaintiff.
4. A declaration that the Defendant is entitled to payment of rents by the Plaintiff to defendant from 1993 to whenever the Plaintiff delivers Possession to Defendant of her property situate and known as No.13 Edet Eyo Crescent, Calabar.
5. AN ORDER for the Plaintiff to pay Defendant the outstanding rent of N558, 000.00 in respect of defendant’s property occupied by Plaintiff as worked out and shown in paragraph 27 of this counter claim.
6. AN ORDER for the Plaintiff to deliver possession to Defendant of the property situate and known as No. 13 Edet Eyo Crescent, Calabar.
7. A perpetual injunction restraining the Plaintiff, his servants, agents, privies and or workman from regarding the property situate and known as No.13 Edet Eyo Crescent, Calabar as belonging to the Plaintiff or Plaintiff holding up himself or behaving as the owner of the said property which rightly belongs to the defendant.
After the exchange of pleadings, trial commenced. Both parties testified for themselves and called no other witness. At the end of trial, the learned trial Judge delivered her considered judgment and found for the Respondent.
The Appellant was dissatisfied and filed his notice and ten grounds of appeal. The Appellant filed his Appellant’s brief on 29th day of December, 2012. The Appellant articulated six issues for determination as follows:
“ISSUES FOR DETERMINATION:
(1) Whether Respondent predicated her case on undue influence so as to justify the court below in relying upon same to reach a verdict in her favour, and if she did (which is not conceded) whether Respondent’s conduct did not disclose larches and acquiescence in defeat thereof?
(2) Whether having regards to the conduct of Respondent in accepting payments for property in the manner and for the period she did, she could be said to have waived her right to subsequently complain of instalmental and delayed payments so as to render the contrary conclusion by the court below erroneous?
(3) Whether there was any agreement between the parties, express or implied by which Appellant was to pay rents to Respondent or upon which a landlord/tenant relationship could be inferred so as to justify the award of rents in her favour?
(4) Whether Exhibit H constituted a repudiation of the original contract, and if it did (which is not conceded) whether after she issued Exhibit H did not derogate from or negate such repudiation?
(5) Whether Appellant paid the purchase price of the property to entitle him to a decree of specific performance of the contract by Respondent?
(6) Whether in determining the justice of this case the court below was entitled to disregard the over N2, 000,000 used by Appellant in completing the property in the computation of rents and the fact that the subsequent conduct of Respondent the effect of a verdict in favour of Respondent was to allow her have a completed house (which was uncompleted at the time of the contract of sale) and keep the full purchase Price of N200, 000.00?
Also the Appellant articulated an alternative issue as follows:
Whether the late delivery of the judgment in this suit long after the constitutionally prescribed period of ninety days after completion of final addresses did not lead to a miscarriage of justice sufficient to set aside the said judgment?
The Respondent filed a Respondent’s brief on 1st June, 2012 but deemed properly filed and served on 4th December, 2012. In it, the Respondent articulated four issues for determination as follows:
(1) Whether the appellant paid the purchase price of N700, 000.00 in which the Respondent offered to sell the property situate at No. 13 Edet Eyo Crescet, Calabar to justify his claims in the suit.
(2) Whether the trial court was not justified in the circumstances of the case to pronounce on the conduct or attitude of the appellant in his dealing with the Respondent particularly undue influence in the transaction with the Respondent as shown in the case by giving judgment in favour of the Respondent against the appellant.
(3) Whether it was not equitable for the court to regard the sum of N200,000.00 paid by the appellant over 9 (nine) years as rent after the failure of the appellant to pay the agreed sum of N700,000.00 as the valid purchase price of the property.
(4) Whether the delivery of the judgment in the suit after expiration of 90 days has occasioned a miscarriage of justice when the court had painstakingly in the judgment examined and evaluated the evidence of the witnesses and documents in the suit.
The learned counsel to the Appellant has been very prolix in his notice and grounds of appeal. He has filed ten grounds of appeal. He has also articulated six issues for determination. In his arguments on the six issues he inelegantly argued the six issues together making it very difficult to decipher the thrust of this appeal.
The alternative issue is one that borders on the jurisdiction of the court. It is couched thus:
“Whether the judgment delivered outside the 90 days provided in the Constitution has occasioned a miscarriage of justice.”
The learned counsel to the Appellant submitted that the parties adopted their final addresses on 14th May, 2008. By S. 294(1) of the 1999 Constitution, the court below was required to deliver its judgment not later than ninety (90) days after the conclusion of evidence and final addresses. Therefore, the lower court ought to have delivered its judgment on or before 14th August, 2008. Judgment was not, however, delivered until 18th February, 2009.
Counsel submitted that the learned Chief Judge, due to the delay in delivering the judgment, lost grip of the whole case such that even her evaluation of the evidence was palpably faulty. Counsel submitted that neither party raised the issue of undue influence as a vitiating element in the original contract. Yet the court below devoted pages 88-89 to it.
The trial Judge reached a wrong conclusion when she held that the Appellant spent over N2.m in months renovating the house when it was infact over a period of 8 years. On this assumption, the trial Chief Judge branded the appellant ‘wicked’ and ‘unfair’.
The Chief Judge also held that the Appellant did not contest, the issue of rents. In fact, counsel submitted that the Appellant joined issues with the Respondent on rent. See page 90 in the Record of Appeal and page 20 and in his evidence at page 34 and in the Appellant’s counsel address page 66-67. Also counsel complained about the evaluation of Exhibit H on which the Chief Judge held that Exhibit H created a contract by which Appellant was bound to pay rents see page 90. From the above, learned counsel submitted that the Chief Judge completely lost grip of the case and urged the court to set aside this judgment.
In response, the Respondent’s learned counsel submitted that the trial Chief Judge had a proper grip of the facts of the entire case and also evaluated the evidence properly. The Appellant in his submission raised the issue of undue influence. This did not vitiate the contract. The undue influence, the Appellant had on the Respondent, made the Appellant to pay for a paltry purchase price of the property in the sum of N200, 000.00 in 9 years. What vitiated the contract was Exhibit H.
The only thing Appellant said about the question of rent was as follows:
“That if he is to pay rents, the rent payable on the said property is as fixed by the said law”
The Appellant never gave evidence or proved the rents payable according to law. It would, therefore, be taken that the rent the court will fall back on is the one stated by the Respondent in her Exhibit H.
Counsel finally urged the court to hold that the learned Chief Judge had a grip of the case and reached the right decisions in the judgment.
By virtue of S.294 (1) of the 1999 Constitution which provides
“that a court shall deliver its decision in writing not later than 3 months after the conclusion of evidence and address and furnish all parties with copies of the judgment.
However, the decision of a court cannot be set aside just on the ground of non-compliance. It can only be set aside if the party complaining about the non-compliance has suffered a miscarriage of justice Iqwe vs. Kalu (2002) 5 NWLR pt 761 page 678, Komonibo v. N.A (2002) 6 NWLR pt 762 page 94, Lawal vs. Quadri (2004) 6 NWLR pt 868 page 1.
Although a court ought to deliver its judgment within 3 months but it is permissible to deliver judgment outside this period for plausible reasons. Korobofei V. Obubo (1999) 9 NWLR pt 620 page 655. Delivering a judgment outside the prescribed 3 months would not ordinarily render the judgment a nullity unless the appellant could show that the delay had occasioned a miscarriage of justice. BCC Plc V. Sky Inspection (Nig) Ltd (2002) 17 NWLR pt 795 page 86, Mika’ilu v. State (2009) 5 WRN Page 74.
The appellant was the one that complained about the judgment delivered outside the time frame provided in S. 294(1) of the Constitution. The Appellant has the burden of showing that the delay had occasioned a miscarriage of justice. BCC Plc v. Sky Inspection (Nig) Ltd (supra). The appellant has not been able to show that a miscarriage of justice has been occasioned. All the issues brought up by the appellant are those issues that are in the arguments proferred in his argument. Those issues are ordinarily issues in the Appeal.
If the Chief Judge did not evaluate the evidence adequately it would be done in the determination of issues already articulated for determination.
The appellant has not, therefore, shown that there has been a miscarriage of justice that would occasion the judgment to be set aside.
I, therefore, hold that the late delivery of this judgment has not occasioned a miscarriage of justice. I would, therefore, proceed to deal with the issues articulated for determination.
As I had earlier stated the appellant’s brief is inelegant and so are the issues articulated for determination. The grounds are prolix and so are the issues.
Akaahs JCA (as he then was) held in the case of Udo v. Registered Trustees B.C. & Star (2011) 17 NWLR pt 1276 page 223 that:
“Issues for determination may be those framed by either one or both of the parties. They may also comprise issues reframed by the court after consideration of those set out by the parties”.
The main reason a court sometimes articulates issues for parties is to narrow the issues in controversy between the parties in the interest of clarity, accuracy and brevity. A court can also formulate issues for determination when the parties have not adequately covered the issues in controversy. See A. Int’l Ltd v. S. R. Int’l Ent. Ltd (2010) 13 NWLR pt 1211 page 270, Okoyeukwu V. Okoye (2009) 6 NWLR pt 1137 page 350.
The issues for determination I have couched from all the issues articulated by parties are as follows:
(1) Whether there was a binding contract of sale between the parties for the purchase of No. 13 Edet Eyo Crescent for the contract price of N200, 000.00 and or N700, 000.00.
(2) Whether the Respondent is entitled to rent for the time the Appellant had been living in No. 13 Edet Eyo Crescent, Calabar.
At the beginning of this relationship, the Appellant and the Respondent negotiated that the Respondent would sell her property at No. 13 Edet Eyo Crescent Calabar to the Appellant at a purchase price of N200, 000.00. This oral contract was entered into in 1993. It is only the contract price of N200, 000.00 that was not disputed by the parties.
The mode of payment was disputed by the parties. The Appellant contended that the Respondent had agreed to instalmental payment since he had lost his job. Also there was no time frame for the payment.
On the other hand, the Respondent claimed she wanted the full payment at once or, in any event, not later that two (2) weeks after she was paid the first instalment. However, from the turn of event, the contrary was what obtained. The Appellant paid N64, 000.00 in two separate instalments Exhibit A & A1 in December, 1993. He stopped any further payments and only resumed in 1995 when he paid for three instalments vide Exhibit B, B1 & 82.
At this stage, the Respondent became frustrated and wrote exhibit H. In it, the Respondent reviewed the contract price to N700,000.00 to take care of the delay. This revised sum was acceptable by the Appellant. However, the Respondent insisted that the sum must be paid en-bloc or, at the worst, in two instalments immediately. This mode of payment was not agreeable to the Appellant who insisted on paying the new price instalmentally over a period of five years. It was at this stage that the contract became frustrated.
“There are five important factors that must be present in a valid contract. There are offer, acceptance, consideration, intention to create legal relationship, and capacity to contract. All the five ingredients must be present before valid contract can exist in law. A contract cannot be formed if any of the ingredients is absent. See Okubule v. Oyegbola (1990) 4 NWLR pt 147 page 723, Orient Bank (Nig) Plc vs. Bilante Int’l Ltd (1997) 8 NWLR pt 515 page 37, Omega Bank Plc vs. O.B.C Ltd (2005) 8 NWLR pt 928 page 547.
The law is that for a contract to be binding on the parties, they must express their agreement in a form, which is sufficiently certain for the court to enforce. Orient Bank Plc vs. Bilante International Ltd (supra)
For a contract to be binding, there must be an unmistaken and precise offer and an unconditional acceptance of the terms mutually agreed upon. See Odutola V. Papersack (Nig) Ltd (2006) 18 NWLR pt 1012 page 470, Sona Brew Plc vs. Peters (2005) 1 NWLR pt 908 page 478, Ezenwa vs. Ekong (1999) 11 NWLR pt 625 page 55.
In the present case, the parties agreed on the revised contract sum but differed on the mode of payment. It would be recalled that the Respondent had testified that the purpose of selling the house was to facilitate her relocation to Akwa Ibom State and building a house there. This was frustrated by the mode of payment adopted by the Appellant and the time lag. Although it is unclear what the terms of payment was between the parties, the delay in fulfilling the payment obligation clearly negates the concept of time value of money. In a country experiencing steady increase in inflation, one would expect a reasonable time for completing this payment. Otherwise constant price changes associated with inflation will make nonsense of the budget by the Respondent for building a new house. It is on record that the Appellant could not finish the instalmental payment of N200,000.00 in five years. Five years is a long time to stagger the payment. Assuming instalmental payment was agreed upon by the parties the time lag was unreasonable on the part of the Appellant. Where the term of a contract is silent as to the time for the performance or satisfaction of a condition, the law shall imply that the obligation is performed within a reasonable time. However, where the parties have, by their mutual agreement, provided for the time for the satisfaction of a condition, time becomes of the essence in the agreement and thus, any breach of that condition has the effect of putting an end to the contract See Niger Insurance V. Abed Brother (1976) 7 SC page 35, Lay land (Nig) Ltd vs. Dizengoff (1990) 2 NWLR pt 134 page 6, Gamla (Nig) Ltd Vs. New (Nig) Bank Plc (1999) 12 NWLR pt 631 page 408
This unreasonable delay necessitated the contract being frustrated. The contract of N200, 000.00 was frustrated by the unreasonable delay. The contract varied to N700, 000.00 was not agreeable to both parties in terms of conditions of the contract. Both parties were not ad idem as regards the terms and conditions of payment. See Oduntola V. Papersack (Nig) Ltd (supra), Sona Brew Plc vs. Peters (supra) Ezenwa V. Ekong (supra) Exhibit H made on 1st April, 1998 determined the contract for N200, 000.00 as the Appellant had failed to or neglected to complete the contract price 5 years after the sale contract was entered into.
Where one party has committed a serious breach of contract, the innocent party has a right to rescind the contract. One of the consequences is that the innocent party who has elected to rescind the contract is released from further obligations under the contract. Dantata V. Mohammed (2000) 5 SC page.
In the present case, the Respondent rescinded this contract when the Appellant refused to pay the new contract price en-bloc or at the worst in two separate instalmental payments.
Once the Appellants refused this condition, the Respondent rescinded the contract.
On this issue, I hold that the respondent was right in rescinding the contract of sale. This issue is resolved against the Appellant.
ISSUE 2
Whether the Respondent is entitled to rent for the time the Appellant had been living in No. 13 Edet Eyo Crescent, Calabar.
The Respondent, in Exhibit H, determined the contract. Also in the letter, the Respondent informed the Appellant of the rate of the rent per month. Also of the increase of the rent after a certain year. This is the tabulation of the Respondent.
“The sum of N200, 000.00 already paid by the plaintiff to defendant is hereby regarded as rent as per defendant’s letter to plaintiff on 1st April, 1998 which is hereby further pleaded. The rent for the property at N2, 000.00 per month in November and December, 1993 as the plaintiff’s first receipt of payment of N27, 000.00 is dated 4th October, 1993.
i. The rent for November & December 1993 at N2,000.00 per month is N4,000.00.
ii. rent at N2,000.00 per month for the years 1984, 1995, 1996 and 1997 is N96,000.00.
iii. rent for 1998 to 2000 being 3 years at N30000.00 per month is N108,000.00.
iv. rent for 2001, 2002 and 2003 at N150,000.00 per year is N450,000.00
v. the rent due to defendant from 1993 to the year 2003 is N40000.00 + N96,000.00 + N108,000.00 +N450,000.00 =N758,000.00.
vi. the defendant avers that when the N200,000.00 already paid to the defendant by the plaintiff which defendant out of sympathy for the plaintiff deducts from the rent of N758,000.00 what the plaintiff is indebted to the defendant as rents from 1993 to year 2003 is N558,000.00. The defendant hereby claims from the plaintiff the said sum of N558, 000.00.
vii. if the defendant does not vacate in 2003, the rent for the 5 (five) bedroom bungalow will be N200,000.00 per annum until possession is delivered to defendant.
See also para 27 of the Respondent’s statement of defence and counter claim. The Respondent calculated the rent at the rate in the Statement of defence and got to a total sum of N758, 000.00. The sum of N200, 000.00 was subtracted to get to the outstanding rent of N558, 000.00.
This is the amount, the Respondent calculated due to her from the Appellant as outstanding rent.
The Appellant in his answer to para 27 of the statement of defence and counter-claim pleaded as follows.
See paragraph 7 of the appellant’s reply.
In answer to paragraph 27 of the Counter Claim the Plaintiff states that at no time was it agreed that payments he made was for rents and defendant cannot unilaterally convert same to rent. The Plaintiff states in the alternative that the question of how much rent is payable on a property in Calabar is a question of law governed exclusively by the Rent Control and Recovery of Premises Law of Cross River State. The aforesaid rents capriciously fixed by the defendants are not only illegal, but in extreme bad faith. Plaintiff shall further contend in the alternative that if he is to pay rents, the rents payable on the said property is as fixed by the said law.
From the above paragraph it can be deciphered neither that the issue was not contested nor controverted. The Appellant put up a contrary figure for rent nor contested the figures put up by the Respondent. Where the Appellant has not done so, the court in the absence of any contrary figure, will accept the figures as tabulated by the Respondent. This issue is also resolved against the Appellant.
The 2 issues articulated have both been resolved against the Appellant.
This appeal is unmeritorious and, therefore, not allowed. I affirm the judgment of the lower court and all the orders contained therein. Cost of N50,000.00 against the Appellant in favour of the Respondent.
JOSEPH TINE TUR, J.C.A: I have read an advance copy of the judgment by my Lord Uzo I. Ndukwe-Anyanwu, JCA. Once the appellant had entered into a valid contract be it oral or written to buy the respondent’s house at No.13 Edem Eyo Crescent Calabar, in 1993 at a price of N200, 000.00 and started paying by installment (Exhibit “A”, “A1” and “B”), in case the respondent defaulted on decided authorities, the respondent was to have sued for the outstanding balance. In Osei Kofi vs. J.E. Mensah (1930) 1 WACA 76 the defendant made an outright sale of his lorry to the plaintiff. The plaintiff made default in payment of some installments. The defendant seized the lorry. The West African Court of Appeal held as follows:
“The defendant’s witness Yar Enin says “I was present when the plaintiff agreed to purchase a lorry from the defendant.” That being the case, on the authority of Thompson v. Veale, 1896 74 L.T. 130, the defendant would have no right to seize the lorry on failure of the plaintiff to pay the installments, even although the Judge found that the plaintiff had agreed in his contract to that course, and his only remedy would be to enforce payment of the installments by action in the courts. This it is agreed is the English Law on the subject, and although Mr. Awere argued that the native law was in his favour, he has not been able to adduce any authority to support that contention.”
When the appellant defaulted unreasonably in paying the balance of the purchase price the respondent could have instituted an action to recover the balance and damages.
The agreement of 18th April, 1988 (Exhibit “A”) reviewing the purchase price to N700, 000.00 was unilateral hence there was no consensus ad idem; there was no enforceable contract. In Sengena vs. Poku (1943) 9-10 WACA 143 the West African Court of Appeal described such a unilateral agreement at page 147 thus.
“It is on the face of it not an agreement between the parties at all; it is only a unilateral document to which only the plaintiff was a party…”
Such is the legal effect of Exhibit “A” dated 1st April, 1998 increasing the purchase price to N700, 000.00. But is the appellant entitled to a decree of specific performance bearing in mind that the agreement to purchase the plot at a consideration of N200, 000.00 was in 1993 entered into but up to the time this suit was instituted on 23rd June, 2003 almost ten years afterwards the appellant was yet to complete paying the purchase price? The purpose the respondent wanted to sell the house was explained to the appellant. Nevertheless he would not complete payment of the purchase price to enable the respondent fulfill that purpose. In Chief Joseph Wobo & Ors. v. The Attorney-General (1952) 14 WACA 132 the appellants as the representatives of the people and successors of the chiefs and headmen of Abali and Ogbum Diobu in Port Harcourt claimed inter alia for a declaration that they are the rightful owners of all that land situate in Rivers Province, commonly known as Port Harcourt and for the cancellation of two agreements dated 18th May, 1913 (Exhibit “F”) and 2nd May, 1928, marked as Exhibits “G” on the grounds that the Attorney-General had breached the terms of the agreement by which the Government of the Southern Protectorate had been put into possession of their respective lands. It was by these agreements agreed that in consideration of the sum of money set out against their several names in the schedule, all the rights, title and interest to which they and their people were entitled to by native law and custom in the land described in the agreement were sold to Alexander George Boyle, Deputy Governor of the Colony and Protectorate of Southern Nigeria; that they were the sole possessors of such lands. At page one of the schedules to the agreement the five chiefs acknowledged receipt of the sum of 2,000.00 Pounds “in full discharge of all our claims under the foregoing agreement.” After the execution of the agreement (Exhibit “F”) of 18th May, 1913 the Government took no further action in the matter for a period of 14 years. The 2,000.00 Pounds was not paid. It was argued that the Government’s conduct amounted in law to an abandonment of the contract and that the agreement dated 2nd May, 1928 (Exhibit “G”), could not revive the earlier agreement even if the parties consented to its doing so. It was clear that the Government entered into possession of some portions of the land affected by Exhibit “F” before the parties signed Exhibit “G”. It seems to me that on the authority of Fisher vs. Eastwoods (1936) 1 All E.R. 426 it could be safe to conclude that the parties had abandoned the contract and to treat it as at an end. The distinguishing factors in Wobo vs. Attorney-General (supra) however were explained by Foster-Sutton P. in the West African Court of Appeal at page 134-135 as follows:
“In Fisher vs. Eastwoods (1) it was held, on the facts of that case that the plaintiff had elected to treat the contract as at an end by reason of acts of his which were inconsistent with its continuance. In his judgment in that case Bransoa, J., said:
“I think the real question I have to decide here is not the purely legal question as to whether this contract was allowed to lapse by the effluxion of a reasonable time, but the practical question as to whether the parties have or have not abandoned the contract and treated it as at end”.
Apart from the fact that the Government entered into possession of some of the land pursuant to Exhibit “F”, Exhibit “G” incorporates “the principal agreement” Exhibit “F”, subject only to the variations contained in Exhibit “G”, and it was, as I have already said, executed, with the exception of Chief Wokekoro, deceased, who was replaced by Chief Wokekoro Wali, by the same Chiefs and Headmen of the people of Diobu who executed Exhibit “F”. I am unable, therefore, to agree with the suggestion that there was any abandonment of the contract.
Mr. Taylor also submitted that a payment of an annual amount of 500 Pounds, forever, as provided for in Exhibit “G”, “is nothing more than payment by installments” and that until final payment the Government are merely tenants at will. He cited two cases which he submitted supported his contention, Tomes v. Chamberlaine (2) and Howard vs. Shaw (3). In my view those cases do not support the proposition contended for. All they decided was that where a party is let into possession under an agreement of purchase, which afterwards goes off, he becomes merely a tenant at will.”
The distinguishing factors are that Exhibit “G” of 2nd May, 1928 incorporated Exhibit “F” of 18th May, 1913. Besides, the respondent having been put into possession in some portions of the land became merely a tenant at will.
In Coker vs. Ajewole (1976) 1 NMLR 178 however the appellant agreed to advance the sum of 1,175.00 Pounds to the respondent to erect a building for her. The appellant advanced the respondent the sum of 800 Pounds for the project. Notwithstanding repeated demands the appellant would not advance the balance. The respondent was compelled to source elsewhere for the sum of 300 Pounds to complete the project. Thereafter the respondent put the person from whom he had sourced the 300 Pounds into possession to enable her recover her money. The appellant instituted an action in the High Court of Justice, Western State, holden at Ibadan claiming against the respondent a writ of specific performance. The learned trial Judge granted relief in the term claimed. The Western State Court of Appeal set aside the judgment. On a further appeal the Supreme Court held at page 183 – 184 of the judgment per Idigbe, JSC as follows:
“It is settled law that a person seeking to enforce a contract must show that all conditions precedent have been fulfilled and that he has either performed or is ready and willing to perform all the terms which ought to have been performed by him. Accordingly, generally a plaintiff in an action for specific performance of an agreement cannot succeed if there is failure on his part to discharge his obligations under the said agreement, (See also Australian Hardwoods Pty. Ltd. v. Commissioner for Railways (1961) 1 All E.R. 737 P.C. at 742). Per Lord Radcliffe who observed as follows:
“A plaintiff who asks the Court to enforce by mandatory order in his favour some stipulation of an agreement which itself consists of interdependent undertaking between the plaintiff and the defendant cannot succeed in obtaining such relief if he is at the time in breach of his own obligations.”
Again, where the plaintiff in an action for specific performance has been guilty of delay in performing his own part of the agreement the delay may bar his claim to specific performance if either:
(a) time was, in equity, of the essence of the agreement; or
(b) if although originally time was not of the essence of the contract it was subsequently made so by agreement implied or express; or
(c) if by his conduct the delay on the part of the plaintiff was such as may be regarded as evidence of abandonment of the contract or agreement.
(See also Souhcomb v. Bishop of Exeter (1847) 6 Hare 213).
The evidence on record is that the respondent waited for a period of one year for the appellant to advance a further sum of 375 Pounds in order to complete the building until he felt obliged to ask for money from Madam Nuratu Ajike the present occupant of the shops.
In this Court, learned Counsel for the appellant has again renewed his request for an order of re-trial. From the foregoing, however, it is clear that there is no point in remitting this case for a re-trial in the High Court. We are satisfied that the Court of Appeal is, on the recorded evidence, amply justified in allowing the appeal by the respondent and dismissing the claim of the appellant. This appeal fails, and it is accordingly dismissed with costs assessed at N110 to be paid by the appellant to the respondent.”
In Thomas Aplin & Co. Ltd. vs. Northern Nigeria Development Corporation (1972) 12 SC 33 Elias, CJN held at page 47 that:
“It is clear law that part performance of an entire contract does not entitle the performer to any payment.”
In my humble view the appellant was guilty of inordinate delay of about ten years in his failure to perform his own side of the obligation. Exhibit “H” of 1st April, 1998 constituted repudiation of the original contract. See Rhymney Rail Co. v. Brecon & Marthyr Tydfil Rail Co. (1900-3) All E.R. Rep.582. In equity time in the circumstance of this case was of essence. See Stickney v. Keeble & Ors. (1914-1915) All E.R. Rep. 73 at 78; Mazin Eng. Ltd. vs. Towers Aluminum (1933) 5 NWLR (Pt. 295) 526 at 535-536.
The appeal is dismissed. The judgment of the learned trial Judge is affirmed. I abide by the further orders of my Lord.
ONYEKACHI A. OTISI, J.C.A.: I had the opportunity of reading in draft the Judgment just delivered by my learned Brother, Ndukwe- Anyanwu JCA. I agree with the reasoning and conclusion; and, I have nothing further to add.
I abide with the Order affirming the decision of the lower Court; and the Order as to costs.
Appearances
D. Diegbe with him
V. Itam
U. EssienFor Appellant
AND
Chief G. A. Udousoro with him
F. E. Ekanem
H. N. UsimFor Respondent
