Abdul Latif Jojo V. Alfred Augustus Cole & Anor (1939)

LawGlobal Hub Judgment Report – West African Court of Appeal

Agreement to make lease—specific performance of contract— Appeal from variation between offer and acceptance—offer and counter-offer judgment of —time as of the essence of the contract.

Facts

The 1st defendant agreed verbally to lease certain premises to the plaintiff. The plaintiff subsequently wrote to the 1st defendant setting out the terms of this agreement and the 1st defendant replied stating that the plaintiff’s letter had contained the substance of the agreement. The learned trial Judge held that there was a substantial variation between the conditions given in one letter and the details given in the reply. This variation consisted in the fact that, in the plaintiff’s letter, it was stated that the agreed rent was to be paid ” after execution of the legal document,” while, according to the 1st defendant’s reply, the rent was to be paid ” immediately the lease was executed.” There was a delay in executing the lease owing to the fact that the first instrument prepared did not contain the boundaries and measurements of the premises. The plaintiff did not send the agreed rent to the 1st defendant until some weeks after he had sent the amended instrument for execution. In the meantime, the 1st defendant had received a better offer from the 2nd defendant. He therefore signed a lease of the premises to the 2nd defendant before the agreed rent which was cabled by the plaintiff from Accra was available to him at Freetown. The learned trial Judge held that there was a clear indication of intention on the part of the 1st defendant that time should be of the essence of the contract, and it would appear that he held that the plaintiff should have sent the agreed rent to the 1st defendant at the same time as he sent the lease. He also held that there was no concluded agreement between the parties as the original letters contained an offer and a counter-offer and not an offer and an acceptance.

Held

That there was a valid contract between the parties and that there was no unreasonable delay on the part of the plaintiff in tendering the agreed rent.

Held Further : That there was no evidence that time was to be of the essence of the contract.

Judgment of Court below reversed. Claim for specific performance of contract refused but case remitted to the Supreme Court for assessment of damages against the 1st defendant.

The Court below to carry out.