Oraka vs Oraka and the impact of duress (2)

Whether Agreement Made Under Duress is Binding and Enforceable:

An agreement entered into under duress is not binding and enforceable, it is voidable. In this case, aside from the undertaking extracted from the appellant on 18 th April 2011, while the criminal charge was pending, there was no prior indication by either party that they intended to enter into a memorandum of undertaking in relation to the division of the properties. It is apparent that but for the undertaking tied to the withdrawal of the criminal charge, the issue of property division via the MOUs would not have arisen at that time. Thus, though the appellant had a period of twelve days between the undertaking and the MOU 1, the criminal charge against the appellant in which the 1st respondent was the nominal complainant remained pending until 7th October 2011 when it was withdrawn by the 1st respondent after the MOUs had been entered into.

That constituted continuing evidence of duress. The appellant was, throughout that period, exposed to the apprehension and anxiety naturally associated with a subsisting criminal charge. Although he was advised by learned counsel and had correspondences written on his behalf, the overarching coercive environment remained and his decisions were influenced by it. In the circumstances, the trial court was right in holding that MOU 1 was tainted by duress. That duress persisted at the time MOU 2 was executed. The linkage of the MOUs to the withdrawal of the pending criminal charge rendered the voluntariness of the appellant’s consent doubtful. The Court of Appeal therefore erred in treating the duress as having dissipated merely by the passage of time without the extinguishment of the underlying coercive factor. Therefore, the MOUs were executed under continuing duress and are voidable at the instance of the appellant. The MOU 1 and MOU 2 are void for being executed under duress. Consequently, any agreement, obligation, or purported disposition of rights arising from the said MOUs is also void.

When Court of Appeal Can Make Orders Not Sought on Appeal:

Pursuant to section 15 of the Court of Appeal Act, once the court undertakes re-evaluation of evidence, it is empowered to assume full jurisdiction over the proceedings and to make such orders as are necessary for determining the real issues in controversy. In this case, having reconsidered the evidence, the Court of Appeal found it necessary, in the interest of justice, to grant orders flowing from its findings and sought at the trial court. Though the specific reliefs were not the direct basis of the cross-appeal, it is evident from the notice of appeal to the Court of Appeal that the complaint extended to the entire decision of the trial court on the ownership of the properties.

The order made by the Court of Appeal was therefore in consequence of the court’s findings on the evidence on record. It would not have served the interest of justice for the Court of Appeal, after re-evaluation, to leave its conclusions without the necessary consequential orders. In this case, the Court of Appeal acted within its powers in granting some of the reliefs sought by the 1 st respondent in her counter-claim.

The Power of Court to Make Consequential Order:

A court must base its decision on the issues submitted by the parties. Nevertheless, a court retains the inherent jurisdiction to make consequential orders to give effect to its judgment. It is also irrelevant that the particular order was not specifically asked for, provided that it flows naturally from the decision reached and did not confer unearned advantage. In this case, the Court of Appeal acted within its powers in granting some of the reliefs sought by the 1 st respondent in her counter-claim.

When Supreme Court will not Interfere with Concurrent Findings of facts by Lower Courts:

The Supreme Court will not interfere with the concurrent findings of facts by lower courts where they are not shown to be perverse and no exceptional circumstance has been established to warrant the court’s intervention. In this case, the trial court, after evaluating the evidence, found that the MOUs were executed on the dates appearing on their faces, and the Court of Appeal upheld that finding. The trial court also made a specific finding that the deed of assignment in respect of two detached houses at Lekki-Epe Expressway, Lekki Scheme 1, Lagos State was issued in the name of Ashley Okara, and that finding was also upheld by the Court of Appeal. The appellant did not show that the concurrent findings are perverse. So, the Supreme Court will not interfere with the findings.

The Attitude of Court to Academic Matters:

The court does not engage in academic or hypothetical inquiries.

CONCLUSION

Generally, duress is a legal concept that arises when a person is compelled to enter into a transaction or agreement through unlawful threats, force, or undue pressure. The law requires that agreements be entered into voluntarily, with the free consent of all parties. Where consent is obtained through duress, the validity of the agreement is affected. In our clime however, law enforcement agencies apply this crude tactic due to lack of capacity to undertake forensic investigations, for lack of adequate funding, amongst other factors. In frustration, the aggression is wrongly transferred to the suspect, in employing force, coercion and at times brute violence, to extract the so-called confessional statements. In employing duress, state actors invariably admit to the failure of due process and their preference for the use of actual or threatened violence, unlawful confinement, economic pressure, or other forms of coercion, that deprive a person of the freedom to make an independent decision. In most cases, the pressure is significant enough to overcome the person’s free will. The principal effects of duress include:

1. Voidable Agreements: A contract entered into under duress is generally not automatically void but voidable at the option of the injured party. The victim may choose to affirm or rescind the agreement once the duress has ceased.
2. Right to Rescind the Contract: The affected party may apply to a court to set aside the transaction and restore both parties to their original positions, provided this can be done fairly. This was the case in Oraka v Oraka, where the aggrieved party utilized his right to challenge the agreements in court and to void them.
3. Loss of Genuine Consent: Since consent is not freely given, one of the essential elements required for a valid contract is absent. Parties must be ad idem for any agreement to be valid and binding.
4. Possible Award of Damages: In some cases, the injured party may recover damages if the duress caused financial loss or other harm.
5. Protection of Public Policy: Courts discourage coercion and uphold the principle that contracts should result from voluntary agreement rather than intimidation or unlawful pressure.

In essence, duress undermines the foundation of contractual relationships by destroying the element of free consent. The law therefore provides remedies to protect parties who have been forced into agreements against their will. To ensure the enforceability of any transaction or agreement, all parties must enter into it voluntarily and without unlawful pressure.

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MAKING IT WORK

There is a need to address the issue of duress headlong in order to stem the ugly tide. The following suggestions, though not exhaustive, can provide some practical guidelines on how to stop the incidences of duress.

1. Promote Legal Awareness: Educate individuals and businesses about their contractual rights and the legal consequences of coercion. From experience, the aggressor takes undue advantage of the victim due to ignorance of their rights under the law.
2. Encourage Independent Legal Advice: Parties should seek legal counsel before signing important contracts, especially where significant financial or property interests are involved. It is better to cancel a proposed contract than have it annulled upon execution.
3. Ensure Voluntary Consent: Agreements should be signed freely, without threats, intimidation, or undue pressure. Adequate time should be given for parties to review the terms.
4. Document the Negotiation Process: Keeping written records, emails, and witness statements can help prove that negotiations were conducted fairly and voluntarily. As is presently the case in criminal investigation, video and photographic evidence should be deployed.
5. Strengthen Law Enforcement: Authorities should promptly investigate and prosecute acts of intimidation, extortion, or violence used to force people into agreements. Police officers whose cases are confirmed to arise from torture or any other form of duress should not just lose their cases but also pay for their malady.
6. Adopt Clear Organizational Policies: Businesses and institutions should establish policies prohibiting coercive practices in negotiations and contracting, such that these provisions are embedded into the agreement.
7. Provide Effective Dispute Resolution Mechanisms: Access to mediation, arbitration, and the courts allows parties to resolve disputes without resorting to threats or force.
8. Encourage Ethical Business Practices: Organizations should promote honesty, transparency, and fairness in all commercial dealings.

These cases have been highlighted for the attention of the law enforcement agencies to be more conscious of the rights of citizens in order to avoid the pitfalls of criminal prosecution.