MR. SUNDAY OSHAFUNMI & ANOR v. MRS. SHERIFAT ADEPOJU & ANOR
(2014)LCN/6894(CA)
RATIO
CONSTITUTIONAL LAW: THE PRINCIPLE GOVERNING THE RIGHT TO FAIR HEARING
The right to fair hearing does not, however, exist in absolute terms. The concept of fair hearing postulates that it is the duty of a Court to create a conducive environment and atmosphere for a party to enjoy his right to fair hearing, but it does not say that it is part of the duty of the Court to make sure that the party takes advantage of the atmosphere or environment so created to exercise his right to fair hearing. It is not part of the business of a Court to compel a party to exercise his right to fair hearing. Where a party fails, refuses or neglects to take advantage of or utilize the environment created by a Court to exercise his right of fair hearing, he cannot turn around to complain of lack of fair hearing – Independent National Electoral Commission V. Musa (2003) 3 NWLR (Pt 805) 72, Dantata V. Mohammed (2012) 8 NWLR (Pt 1302) 366, National Films & Video Censors Board V. Adegboyega (2012) 10 NWLR (Pt 1307) 45.
The question whether a party has been afforded an opportunity to exercise his right of fair hearing depends upon a careful consideration of the facts and circumstances of each case and the test to be applied in each case is an objective one based on the impression of a reasonable and fair minded observer at the trial – Action Congress of Nigeria V. Lamido (2012) 8 NWLR (Pt 1303) 560 and Eastern Breweries Plc, Awo Omamma V. Nwokoro (2012) 14 NWLR (Pt 1321) 488.” Per HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
CONTRACT: THE CONCEPT OF SPECIFIC PERFORMANCE
Specific performance is the rendering, as nearly as practicable, of a promised performance through a judgment or decree. It is a decree issued by the court which constrains a contracting party to do that which he has promised to do. Specific performance is a court-ordered remedy that requires fulfillment of a legal or contractual obligation when monetary damages are inappropriate or inadequate. It is a remedy provided by equity to meet those cases where the common law remedy of damages is inadequate. The equitable doctrine of specific performance is discretionary and the dominant principle has always been that equity will grant specific performance if, under all the circumstances, it is just and equitable to do so.
The remedy is available in a variety of contractual relationships but whether or not it will be granted depends on the nature of the contract – Governor of Ekiti State V. Ojo (2006) 17 NWLR (Pt 1007) 95 at 126F, Mustapha V. Abubakar (2011) 3 NWLR (pt 1233) 123, Best (Nig) Limited V. Blackwood Hodge (Nig) Ltd (2011) 5 NWLR (Pt 1239) 95, Ibekwe V. Nwosu (2011) 9 NWLR (pt 1251) 1. The point was put by Kay, L.J., in Ryan V. Mutual Tontine Association (1893) 1 Ch 116 at 126 thus: “This remedy by specific performance was invented, and has been cautiously applied, in order to meet cases where the ordinary remedy by action in damages is not an adequate compensation for breach of contract. The jurisdiction to compel specific performance has always been treated as discretionary, and confined within well known rules.”
The onus on a party seeking to enforce his right under a contractual agreement is to show that a valid contract exists and that he has fulfilled all the conditions precedent. He must show that he has performed all those terms which ought to have been performed by him. He must show that he has been vigilant and has done all that is required of him to have a clean hand to enforce the contract – Lagos State Development & Property Corp V. Nigerian Land and Sea Foods Ltd (1992) 5 NWLR (pt 244) 653, Nlewedim V. Uduma (1995) 6 NWLR (pt 402) 383, Universal Insurance Co Ltd Vs T. A. Hammond (Nig) Ltd (1998) 9 NWLR (Pt 565) 340, Saka V. Ijuh (2010) 4 NWLR (pt 1184) 405. Per HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
