⦿ CASE SUMMARY OF:
Isaac O. Nlewedim v. Kalu Uduma (1995)
by PipAr Chima
⦿ NOTABLE DICTA
* EQUITY AIDS THE VIGILANT
Whoever seeks equitable remedy like specific performance must show that he is vigilant and does all that was required of him to have clear hand to enforce the contract. Vigilantibus et non dormientibus jura subveniunt. – Belgore, JSC. Nlewedim v. Uduma (1995)
* ESSENTIALS OF A LEASE; LEASE MUST HAVE CONSENSUS AD IDEM
It is also well settled that before an agreement for a lease may be regarded as valid, its essential terms, such as the parties concerned, the property involved, the duration or length of the term, the rent payable, the date of its commencement, the terms as to covenants and the mode of its determination must inter alia be certain. See Harvey v. Pratt. supra at p. 788. An agreement for a lease. Therefore, to be capable of enforcement by an order of specific performance must be certain as regards its essential terms. – Iguh JSC. Nlewedim v. Uduma (1995)
An agreement for a lease is like any other contract and in accordance with the general principles of the law of contract, it will not be binding or enforceable on the parties until there is a consensus ad idem both upon matters which are basic and cardinal to every agreement for a lease, and also upon matters that are part of the particular bargain concerned. See Rossiter v. Miller (1987) 3 A.C. 1124 at 1151. These cardinal terms of an agreement for a lease comprise, as I have already indicated, the parties, the premises, commencement and duration, rent and covenants in respect thereof. See Halsbury’s Laws of England 3rd Edition Volume 23, Paragraph 1039 at page 440. I therefore agree with the Court of Appeal that Exhibit A did not qualify as a memorandum of an agreement for a lease capable of enforcement by an order for specific performance in view of the uncertainties I have referred to above. – Iguh JSC. Nlewedim v. Uduma (1995)
* THERE MUST BE PART PERFORMANCE TO WARRANT SPECIFIC PERFORMANCE
On the issue of whether the appellant established sufficient acts of part performance to support and order for specific performance, it is the view of the court below that there had been no part performance to warrant a specific performance. I have myself considered all the evidence led before the court but can find no reason to fault this finding. At all events, whether or not part performance was established by the appellant in this case cannot now be regarded as any matter of great moment. This is because of my finding that there can be no specific performance of an agreement for a lease such as Exhibit A when the parties had not reached a consensus ad idem on vital issues such as the commencement date. The covenant, rent and mode of determination of the lease among others. – Iguh JSC. Nlewedim v. Uduma (1995)
Isaac O. Nlewedim
⦿ LEAD JUDGEMENT DELIVERED BY:
* FOR THE APPELLANT
* FOR THE RESPONDENT
⦿ CASE HISTORY
The appellant, Isaac O. Nlewedim around 12th January 1976 went into an agreement to purchase a piece of land called “Ala Isimkpa” at Umule village in Southern Ngwa Division of the then East Central State, later Imo State but now Abia State. In the Statement of Claim the plaintiff averred that the agreed sum was N5,100.00 (five thousand five hundred Naira) and that he paid N3500.00 (three thousand one hundred Naira) as part payment promising to pay the balance of N1,600.00) (one thousand six hundred Naira) immediately he (plaintiff) surveyed the land and that he was there and then let into possession; by this he seemed to take the “word” possession to mean what he described in the Statement of Claim as “the plaintiff should go into immediate possession of the land in dispute and the plaintiff should survey the land in dispute and start exercising all acts capable of’ being exercised by a lessee”.
As for possession, the defendant denied ever putting the plaintiff in possession and that he only undertook to execute formal lease in favour of the plaintiff as soon as he received the final payment of N1,600.00 from the plaintiff.
⦿ ISSUE(S) & RESOLUTION
1. Whether the receipt of payment was a sufficient memorandum?
The statement of defence in paragraph 5 is very clear and ample evidence was led to it that Exhibit A did not amount to a lease for 99 years and the contents thereof did not amount to a memorandum required under S. 4 Statute of Frauds 1677. The Court of Appeal therefore rejected Exhibit A as a memorandum amounting to a lease. I have nothing to contradict this stance of the learned Justices after considering all the facts pleaded and the evidence before the Court, the learned trial Judge was certainly in error or acted under inadvertence in holding that document to be as good as a memorandum of lease.
Lord Denning MR. in Harvey v. Pratt (1965) 2 All E.R. 786/788 where he said: “It is settled beyond question that, in order for there to be a valid agreement for a lease, the essentials are that there shall be determined not only the parties, the property, the length of the term and the rent, but also the date of its commencement It is not sufficient to say’ that it can be supplied by an implied term as to reasonable time. It cannot be assumed either that the term is to commence from the date of the agreement: Fitzmaurice v. Bayley (1960) 9 H.L. Cases 78.”
A close study of Exhibit A reveals in no mistakeable term that but for the parties to the lease, the premium payable, the term of 99 years and the property involved. There is a total lacuna, as to the other essential elements of a valid agreement for a lease such as the commencement date of the lease, the rent payable, the terms as to its covenants and the mode, if any, of its determination, These missing essential elements were neither pleaded by the appellant in his Statement of Claim nor was evidence led before the court in respect thereof. In my view, Exhibit A cannot ex facie be regarded as a complete and sufficient contract to constitute a certain and valid agreement for a lease capable of enforcement by an order of specific performance.
2. Whether the appellant entered physical possession of the land?
There was no cogent evidence that immediately after payment of N3,500.00 the plaintiff was put in physical possession, Exhibit A is silent on possession and there is evidence that the defendant had actually surveyed the land years before he even met the plaintiff. Certainly the preponderance of evidence before the trial Court indicates the defendant rather than the plaintiff was all along in possession. The substance of the agreement between the parties is for the plaintiff to pay the full price quickly, time being of the essence, the plaintiff failed in this.
⦿ ENDING NOTE BY LEAD JUSTICE – Per Belgore JSC
The agreement, slightly revealed by Exhibit A, was yet to be drawn up: even according to Exhibit A which is just a receipt for payment of N3,500.00 and indication that formal agreement would be drawn up upon the payment of N1,600.00, it was not meant to be the agreement capable of amounting to a lease. If an agreement is vague, as in this case, it is more of oral agreement with Exhibit A at best indicating the existence of such agreement, it will not be enforced in the absence of clear evidence of its terms. Conduct of the plaintiff applying for specific performance is also of major importance in deciding whether or not to decree it. A purchaser of land cannot enforce specific performance if he fails to fulfill a fundamental part of the agreement, in the instant case, failure to pay in time when time was of the essence. I am therefore in full agreement that there is no merit in this appeal and I dismiss it with N1,000.00 costs to the respondent.
⦿ REFERENCED (STATUTE)
⦿ REFERENCED (CASE)
⦿ REFERENCED (OTHERS)
⦿ SIMILAR JUDGEMENTS