It is believe that a contract can be made either through written agreement or oral agreement, but not all contracts can be made by oral agreement as in the case of formal contract which is required in law to be in writing, signed, sealed and delivered. On the other hand, in giving evidence in court, both oral testimony and documentary evidence are allowed in law to be admissible. However, the most reliable, if not the best evidence is documentary evidence. That is to say, the law accords primacy to documentary evidence over oral evidence. It is trite, in the formation of contract and admissibility of evidence, that document has supremacy over oral indication. Consequently, where there is conflict between documentary evidence and oral testimony, the contents of documentary evidence shall prevail. Owing to this, this legal excerpt explores the position of the law on whether oral evidence is admissible to add to, vary, alter, subtract from, or contradict the contents and terms of the written agreement/document.
The General Position of the Law
The Evidence Act, 2011through section 128(1) asserts thus:
“When a judgment of a court or any other judicial or official proceeding, contract or any grant or other disposition of property has been reduced to the form of a document or series of documents, no evidence may be given of such judgment or proceeding or of the terms of such contract, grant or disposition of property except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under this Act; nor may the contents of any such document be contradicted, altered, added to or varied by oral evidence.” (the underline is mine for emphasis).
It is settled principle of law that where there is oral evidence as well documentary evidence, the documentary evidence is used as a hanger for which to assess the oral testimony. See KINDEY v MILITARY GOV. OF GONGOLA STATE (1988) 2 NWLR (pt. 77) pg. 455. HAWAD INTERNATIONAL SCHOOLS LTD. v MINA PROJECT VENTURES LTD. (2003) 39 WRN 57 @ 69.
As a result, oral evidence cannot be used to contradict contents of documentary evidence. See MADU v MADU (2008) 6 NWLR (pt. 1083) pg. 296 @ 324 S.C. para. F – H. Also per Onnoghen, J.S.C. pg. 17, para. B – C in EMMANUEL OLAMIDE LARMIE v DATA PROCESSING MAINTENANCE & SERVICES LTD. (2005) LPELR – S.C. 157/2001 held thus:
“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.”
Therefore, oral evidence is inadmissible either to add to or subtract from the contents of a document as a document speaks for itself with the result that parties cannot give evidence contrary to its contents. In other words, where a case is fought on pleadings supported by documentary evidence, oral evidence is not allowed to contradict the clear terms of the documents since the task before the court is to interpret or construct the terms of the document. See ASHAKACEM PLC v ASHARATUL MUBASHSHURUN INVESTMENT LTD (2019) LPELR – 46541 (SC).
Exception to the Rule
The beauty and handsomeness of law is that wherever it gives birth to a particular general rule, it does support that rule with exceptions base on surrounding circumstances to the application of the rule to the existing facts.
Pursuant to the proviso to section 128(1) of Evidence Act, 2011, the following exceptions are deducible:
1. Where the oral agreement preceded the content of the document, the evidence of oral agreement may be given. See SEWONIKU v OROTIOSAKIN (1986) 3 NWLR (pt. 30) pg. 597.
2. Oral evidence may be allowed to prove the existence of any separate oral agreement as to any matter on which the document is silent. Oral evidence can be given when the documents are silent provided that the oral evidence is consistent with the contents of the document. See ALLI v IKUSEBIALA (1985) 1 NWLR (pt. 4) pg. 630.
3. Where the circumstances of the case require that the court may infer that the parties did not intend the document to be a complete and final statement of transaction between the parties. That is where the contract is partly written and partly oral; the court will allow the parties to give verbal evidence. See OLAGUNJI v RAJI (1986) 5 NWLR (pt. 42) pg. 48.
4. Extrinsic evidence may be admitted to resolve an ambiguity in the contract. Oral evidence is admissible in respect of matters ambiguously described in a document. See SCOA v BOURDEX (1990) 3 NWLR (pt. 138) pg. 380.
5. To prove illegality, fraud, intimidation, mistakes, want of consideration or any other matter which if proved by oral evidence will produce an effect upon the validity of the document or any party of it (i.e. the identity of the parties to the agreement). See SALAMI v SAVANAH (1990) 2 NWLR (pt. 130) pg. 160.
6. To prove capacity in which a person contracted if the written contract or conveyance does not disclose that capacity or that the person who contracted as owner is not the true owner. See UDOGWU v OKO (1990) 5 NWLR (pt. 153) pg. 721.
7. Where a document is undated, oral evidence is admissible to show when it was written and from what date it was intended that it should operate. See AMIZU v NZERIBE (1989) 4 NWLR (pt. 118) pg. 755.
8. Where there is the existence of any distinct subsequent oral agreement to rescind or modify any such written contract or disposition of property.
9. If there is the existence of any particular usage or customs by which incidents are attached to a contract then it can proved by oral evidence. For instance, where the language used in the written document has a particular meaning by custom or usage in a particular trade, industry or region, oral evidence of that meaning is admissible. See HUTTON v WARREN.
It is crystal clear now that the rule which says that a written document cannot be varied, altered, contradicted, added to or subtracted from by oral evidence exists with exceptions. If the circumstance of the case does not revolve around any of the aforementioned exceptions, the rule will be applied stricto sensu. By so doing, the nature and circumstance of the case have to be taken into cognizance in totality.