Can A Written Agreement Be Changed Orally?
An agreement is the meeting of the minds or a mutual understanding between two or more persons about their reciprocal rights and duties regarding past or future performances. It is also a manifestation of a mutual assent by two or more persons. See [ Asuquo & Ors. V. Eyo & Anor. (2013) LPELR-20199 (CA) ].
NOTE: More often than not, the term agreement is frequently used as a synonym for contract but it is pertinent to stress that it lacks an essential element of contract such as; consideration and intention to create a legal obligation. See [ Akpan V. Ubong (2013) LPELR-20418 (CA) ].
Ways Of Making Agreements
An agreement can be made orally, by conduct and through a written form. See [ Trade Bank Plc. V. Dele Morenikeji (Nig) Ltd. (2005) 6 NWLR (Pt 921) Pg 309-332 (CA) ].
Generally, agreements can be made orally or in writing. The Nigerian courts recognise and uphold oral and written agreements. While oral agreements can be changed by or with written agreements, one wonders if written agreements can be changed orally? And, what will be the case, where oral agreements, though not written, are recorded electronically, can such recorded oral agreements change written agreements?
Here are the words of the Supreme Court of Nigeria, on this issue;
1. It is a well established principle of law that where parties have reduced their agreement into a written document, subject to some exceptions, oral evidence will not be allowed to contradict or alter the contents of the document. See [ Colonial Development Board v. Kamson (1955) 21 NLR 75 ]. ” Per DENNIS ONYEJIFE EDOZIE ,J.S.C ( P. 10, paras. B-C). Quotation from the Supreme Court’s judgment in the case of INTERNATIONAL MESSENGERS (NIG) LTD v. PEGOFOR INDUSTRIES LTD (2005) LPELR-1525(SC).
2. It is a settled law that where the contract between the parties is reduced into writing, extrinsic evidence is not permitted to add, vary, subtract from or contradict the terms of the written instrument.
See [ Ogundepo Vs Olumesan (2011) 18 NWLR (Pt. 1278) 54 ]. Quotation from the Supreme Court’s judgment in the case of ATIBA IYALAMU SAVINGS & LOANS LTD v. SUBERU & ANOR (2018) LPELR-44069(SC)
3. The law is trite regarding the bindingness of terms of agreement on the parties. Where parties enter into an agreement in writing, they are bound by the terms thereof. This court, and indeed any other court will not allow anything to be read into such agreement, terms on which the parties were not in agreement or were not ad-idem. See [ Koiki v. Magnusson (1999) 8 NWLR (Pt. 615) 492 at 514. ]” Per MAHMUD MOHAMMED ,J.S.C ( P. 46, paras. D-F ) Quotation from the Supreme Court’s judgment in the case of LARMIE v. DATA PROCESSING MAINTENANCE & SERVICES LTD (2005) LPELR-1756(SC)
4. If parties had earlier agreed orally on a particular point and later enters into a written agreement or contract, it is part of general commercial practice to reduce the oral agreement as part of the contents of the written agreement which is later in time. See [ Eke v. Odolofin (1961) 1 All NLR (Pt. 2) 404.] ” Per NIKI TOBI ,J.S.C ( P. 33, paras. E-F ) Quotation from the Supreme Court’s judgment in the case of LARMIE v. DATA PROCESSING MAINTENANCE & SERVICES LTD (2005) LPELR-1756(SC)
5. It is the law that where parties have embodied the terms of their contract in a written document, extrinsic evidence is not admissible to add to, vary, subtract from or contradict the terms of the written instrument.” Per WALTER SAMUEL NKANU ONNOGHEN ,J.S.C ( P. 17, paras. B-C ) Quotation from the Supreme Court’s judgment in the case of LARMIE v. DATA PROCESSING MAINTENANCE & SERVICES LTD (2005) LPELR-1756(SC)
6. Where a contract is in writing, any agreement which seeks to vary the original agreement, must itself, be in writing. See [ Bijou (Nig.) Ltd. v. Osidarohwo (1992) 6 NWLR (Pt.249) 643 AT 649 ]
Written and oral agreements are valid and recognised, but while written agreements can vary (change) an oral agreements, oral agreements cannot change written agreements, except in extreme circumstances. Among the extreme cases are where there is need to show meaning of illegible, obsolete or technical expressions in a written agreement, So, where parties have both oral and written agreements, the court will not allow the contents of written agreements to be changed or modified by earlier or later oral agreements of parties. Where there is a written agreement, parties must ensure it covers their earlier oral agreements and where there is a subsequent oral agreement, such oral should be immediately put into writing. The superiority and importance placed on written agreements over oral agreements is on the documentary permanent nature of written agreements. Since written agreements are documented, there are easily recorded, stored, retrieved and reproduced unlike oral agreements. So, facts contained in written agreements are fixed, easily ascertainable and can last beyond their makers. It is arguable that where oral agreements are recorded in permanent forms (like videos an audio formats), oral agreements will enjoy all the luxuries of a written agreement, if not more.
I believe that the extreme circumstances, where oral agreements can modify written agreements will include where oral agreements are recorded in permanent forms, which may exclude writing. A recorded oral agreement can be deemed a written agreement (documentary evidence) and can alter a prior written agreement. In Nigerian courts, going by the provisions of the Evidence Act, “document” includes discs, tapes, sound tracks, films, negatives, or other devices in which sound, information or data can be recorded, stored, reproduced or retrieved. See Section 258(1) Paragraph,A, B and C of Evidence Act (2011). So, it is safe to say that whether an agreement is written or oral, so far as it is documented (recorded in a retrievable permanent format) such an agreement is superior and can change or modify earlier existing agreements of any form or format.
In this era of great advancement in information technology, oral agreements can be easily recorded via audio-visual recording devices and online platforms (including Whatsapp, FaceTime, Facebook, Zoom, Skype and others). This will make oral agreements to be documented and also documentary evidence, although they are not written agreements.
Our laws and courts must grow with the realities of today and marry technological know how to the laws when the need arises.
ABOUT THE AUTHOR
Nnamseh Aniekan Aloysius is a writer, a poet, motivator, author reseacher and the sole founder of “Wits Of The Law”.His area of interest are International Humanitarian Law (I.H.L), Criminal Litigation, Intellectual Property Law, Tax Law and Health Law.
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