*CAN A WRITTEN AGREEMENT BE CHANGED ORALLY?* Daily Law Tips (Tip 590) by Onyekachi Umah, Esq., LLM. ACIArb(UK)

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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?

Often you will find landlords and their agents wooing tenants to hurriedly sign tenancy agreements while specific conditions desired by the tenants are made orally and never written. I hear clients say, “… we orally agreed on a higher commission 2 years after we signed the written agreement, he cannot deny it…”, “… he cannot look me on the face and deny that we orally changed the written agreement, my wife is my witness” or “… we orally changed our written contract in the presence our friends, they are my witnesses. We agreed that there was no need to put it in writing”.

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: 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 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: Koiki v Magnusson (1999) 8 NWLR (Pt.615) 492; Ogundepo Vs Olumesan (2011) 18 NWLR (Pt. 1278) 54; Olaoye vs. Balogun (1990) 5 NWLR (Pt. 24.” Per KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN ,J.S.C ( P. 32, paras. A-C ) 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 Baba v. Nigerian Civil Aviation Training Centre, Zaria (1991) 5 NWLR (Pt.192) 388; Union Bank of Nigeria Ltd. v. B. U. Umeh & Sons Ltd. (1996) 1 NWLR (Pt.426) 565; S.C.O.A. Nigeria  Ltd. v. Bourdex Ltd. (1990) 3 NWLR (Pt. 138) 380 and 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 generally 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. This is exactly what happened in the circumstances of this case where the condition of releasing of the respondent to the 1st appellant was that the 1st appellant, shall accept the respondent as employed and, transferring his service from one body to another body. See the cases of John Holt John Holt & Co. (Liverpool) Ltd. v. Stephen Lafe (1938) 15 NLR 14 and Bijou (Nig.) Ltd. v. Osidarohwo (1992) 6 NWLR (Pt.249) 643 AT 649. Again, a contract which must in law bein writing, can only be varied by an agreement in writing. See the case of Morris v. Baron & Co. (1918) A.C. 1 at 39.” Per IKECHI FRANCIS OGBUAGU ,J.S.C ( Pp. 39-40, paras. E-A ) Quotation from the Supreme Court’s judgment in the case of CBN V IGWILLO (2007) LPELR-835(SC)

7. “I agree with the Appellant’s submission, on the authority of Olatunde O.A.U. & Anor. (1998) 4 S.C.N.J. 59 at 74 – 75 and Layade Panalpina World Transport (Nig.} Ltd (1996) 7 S.C.N.J. II; that it is no duty of the Court to make contracts for the parties, and that as a rule parties make their own contracts and intend thereby to be governed by the contract.… The parties herein having thus made their contract in Exhibit D2 and in writing, the law is settled that they, the parties, particularly the Appellant herein, are not permitted to adduce oral evidence to establish terms extrinsic to, and to vary, the terms agreed upon and settled in Exhibit D2; Union Bank of Nigeria Plc v. Ozigi (1994) 3 N.W.L.R. (Pt. 333) 385 at 400; Olatoye v. Balogun (1990) 5 N.W.L.R. (pt. 148)24. In the event of any dispute as to what the plain and ordinary words of a written agreement mean, the law as enacted in Section 132(2) of the Evidence Act 1990 (for now Section 129(2) of the Evidence Act, 2011) is that evidence may not be given to show that common words, the meaning of which is plain, and which do not appear from the context to have been used in a peculiar sense, were infact so used.” Per EJEMBI EKO ,J.S.C ( Pp. 49-51, paras. G-A ) Quotation from the Supreme Court’s judgment in the case of ATIBA IYALAMU SAVINGS & LOANS LTD v. SUBERU & ANOR (2018) LPELR-44069(SC)

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. 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/modify earlier existing agreements of any form/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 technology.

My authorities are:

1. Sections 129, 130, 258 and 259 of the Evidence Act, 2011.

2. The Supreme Court’s judgment in the case of INTERNATIONAL MESSENGERS (NIG) LTD v. PEGOFOR INDUSTRIES LTD (2005) LPELR-1525(SC)

3. The Supreme Court’s judgment in the case of ATIBA IYALAMU SAVINGS & LOANS LTD v. SUBERU & ANOR (2018) LPELR-44069(SC)

4. The Supreme Court’s judgment in the case of LARMIE v. DATA PROCESSING MAINTENANCE & SERVICES LTD (2005) LPELR-1756(SC)

5. The Supreme Court’s judgment in the case of CBN V IGWILLO (2007) LPELR-835(SC)

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