DR S. A. AGBAJE & ORS. V. ADEOYE S. B. ISAAC & ANOR
August 27, 2025GEORGE HUTCHFUL V. HAMILTON KWEKU BINEY
August 27, 2025Legalpedia Citation: (1971) Legalpedia (SC) 11116
In the Supreme Court of Nigeria
Wed Oct 27, 1971
Suit Number: SC 149/1969
CORAM
LEWIS, JUSTICE, SUPREME COURT
UDOMA, JUSTICE, SUPREME COURT
SOWEMIMO, JUSTICE, SUPREME COURT
PARTIES
JACKIE PHILLIPS APPELLANTS
RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The plaintiff entered into a mortgage agreement with the defendant company for shares amounting to £5000 using his property as the security. Failing to carry out fully his obligation under a contract which was to entitle him to reconveyance of his property, the defendant sought to exercise their power of sale under the mortgage deed.
HELD
The Court held that the plaintiff had not complied with one of the important terms of the entire contract and so the doctrine of substantial performance of the contract will not avail him. The defendants are therefore entitled to exercise their power of sale.
ISSUES
1. Whether the contract (exhibit 3) was to effect a novation of the original agreement evidenced in the mortgage (exhibit 2) thereby superseding the mortgage deed and cancelling out the power of sale of the defendant.
2. Whether in fact the contract concerned was an entire contract or not
RATIONES DECIDENDI
THE DOCTRINE OF SUBSTANTIAL PERFORMANCE
Although a contract may have several terms, it must be the intention of the parties that determines whether it is to be treated as an entire contract or as a separable one. Per Lewis JSC
CASES CITED
1. Banque Genevoise De Commerce Et De Credit v. Compania Maritima Di Isolo Spetsai Ltd. (The “Spetsai Patriot”) (1964) 2 Lloyds List L.R. 329
2. Hoenig v. Isaacs (1952) 2 All E.R. 176
3. McGarvie, Pennam and Hocker p. 767.
4. Morris v. Baron & Co. (1918) A. C. 1
5. Vigers v. Cook (1919) 2 K.B. 475
6. Scarf v. Jardine, (1882) 7 App. Cas. 345, at p: 351,
7. Wilson v. Lloyd (1873) L.R. 16 Eq. 60 at page 74
STATUTES REFERRED TO
None
