SUCCEEDING IN BREACH OF CONTRACT

FORMING A CONTRACT – MUTUAL ASSENT

The nature of the plaintiffs/appellants’ claim, as averred in their amended Statement of Claim, which of course they failed to prove, was that there was a subsisting contract between the parties. Whether or not there is a semblance of a legally binding agreement between the parties, that is, a situation where the parties to the contract confer rights and impose liabilities on themselves, will largely depend on whether there exists a mutual assent between them. Where there is doubt on whether the parties have concluded a legally binding agreement, the court has the responsibility to analyse the circumstances surrounding the alleged agreement and determine whether the traditional notion of ‘offer’ and “acceptance” can be distilled from the purported agreement. The mutual assent must be outwardly manifested. The test of the existence of such mutuality is objective. See Norwich Union Fire Insurance Society v Price (1943) AC 455 at 463. When there is mutual assent, the parties are said to be ad idem. Now the two items, “offer” and “acceptance”, earlier referred to, call for some explanation in order to recognise whether or not the parties are ad idem. An ‘offer’ is an expression of readiness to contract on the terms specified by the offeror (i.e. the person making the offer) which if accepted by the offeree (i.e. the person to whom the offer is made) will give rise to a binding contract. In other words, it is by acceptance that the offer is converted into a contract.

— Achike, JSC. Sparkling Breweries v Union Bank (SC 113/1996, 13 July 2001)

COURTS DO NOT MAKE CONTRACTS FOR PARTIES

It is fundamental that the courts will neither make a contract for the parties nor inquire into the adequacy of a consideration. – Nnaemeka-Agu, JSC. Petroleum v. Owodunni (1991)

COURT DOES NOT SET CONTRACT FOR PARTIES – IT ENFORCES THE AGREEMENT

No court ever makes a contract for any party or group once the plaintiffs and their followers have agreed to be bound by the constitution of the Movement exhibit 1, they must be prepared to act within its provisions and cannot expect any help from the court to act ultra vires the provisions of what they have agreed to be bound sic. This is precisely the position of the court in this case. The plaintiffs and their followers agreed to give overall control to the executive committee as the government of the Movement as well as power to amend the said constitution … Whilst the court concedes to any body or group be it domestic or otherwise the right to have access to the court for the redress of any wrong no remedy will be available to an applicant where the act complained of is in accordance with the agreement between the body or group.

– Obaseki, JSC. Shodeinde v. Ahmadiyya (1983) – SC.64/1982

AWARD OF DAMAGES FOLLOWS BREACH OF CONTRACT

An award of damages usually follows a breach of contract so as to compensate the injured party for loss following naturally and within the contemplation of the parties. Damages is attached to a breach following an enforceable contract. Where there was no such contract an award of damages by any Court is not only a misconception but a contradiction in terms as such award is based on a wrong principle of law. This court has a duty not to allow such an award to stand.

— Adekeye, JSC. Best Ltd. v. Blackwood Hodge (2011) – SC