INTRODUCTION

In the previous piece on this page, we x-rayed the illegality of the practice adopted by many law enforcement agencies in arresting citizens in lieu of another suspect, as confirmed in the decision of the Supreme Court in the case of Smart v Idiokita, where the apex court deprecated the conduct of the nominal complainant before the police, which led to the arrest of the father of a business partner in the hope that his ordeal will cause him to prevail on his son to pander to the dictates of the complainant. This has become more rampant because of general lack of confidence in the judicial process, causing many to adopt unorthodox methods to get results. Like in Smart v Idiokita, the case of Oraka v Oraka also arose from a domestic relationship between husband and wife which went sour and eventually ended up in criminal prosecution. The rationale for enacting section 7 of the Administration of Criminal Justice Act, 2015, was to cure this illegal method of holding one citizen as a ransom for the alleged offence of a suspect. Seeing now that it has become more of an epidemic clogging the due administration of criminal justice, it is suggested that the authorities of the various law enforcement agencies should deploy these judgments of the highest court to set up training manuals for their officers to ensure strict compliance with due process. Given the dilapidating state of places of detention all over the country, it is a miracle to go into custody and return whole and sane, unless special privileges are negotiated and secured, as has been reported lately in some quarters.

THE FACTS OF THE CASE

The facts of this case are as reported in (20260) 8 NWLR (Pt.2046) 509, wherein the appellant commenced an action against the respondents seeking several reliefs. Principally, the appellant sought an order nullifying two memoranda of understanding between the appellant and the 1st respondent on grounds that the memoranda are sham and were fraudulently procured by the 1st respondent and therefore void. The appellant also sought an order that several listed properties in Lagos State and the Federal Capital Territory of Nigeria belonged solely to the appellant. In addition, the appellant sought several other reliefs against the 1st respondent, which included the setting aside of all devices, deeds of assignment and any transfer made to the 1st respondent pursuant to the memoranda of understanding. Against the 2nd respondent, the appellant sought an order directing it to handover all of the appellant’s title documents which the 1st respondent deposited in the 2nd respondent’s custody.

The appellant’s case was that he and the 1st respondent were married in 1993 and during the pendency of the marriage he acquired several properties personally while they lived in the U.S.A., Canada, and Nigeria. Further, during a serious marital dispute with the 1st respondent, he was arrested on 6th April 2011 at his residence in Lagos on the complaint of the 1st respondent. Subsequently, on 15th April 2011, he was arraigned before the Magistrate Court, Ebute-Metta, Lagos State and on 18th April 2011, he made two sets of undertakings (Exhibits A15 and A16) in the presence of a Police Officer though not at a Police Station. In exhibit A16, the appellant stated that he would ensure that the 1st respondent had full access to all the properties and to the title documents relating to all the investments made and properties acquired by him and the 1st respondent during their marriage. In exhibit A15, the appellant stated the properties would be shared in a pattern that would make provisions for their three children, and that would be a condition for the 1st respondent’s withdrawal of the pending criminal charge at Ebute-Metta Magistrate Court. It further stated that the 1st respondent would appoint a lawyer to draw the memorandum of understanding. Later, the appellant and the 1st respondent made and signed two memoranda of understanding - MOU 1 on 1st May 2011(exhibit A5) and MOU 2 on 19th June 2011 (exhibit A6) for the sharing of the properties. Following the filing of a sworn testimony (exhibit A) by the 1st respondent withdrawing the charge against the appellant at the Magistrates Court, the appellant was discharged of the charge on 7th October 2011.

The appellant maintained that the properties are his solely and that he signed MOU 1 and MOU 2 under duress, and therefore they were void. The 1st respondent on her part filed a statement of defence and a counter-claim contending that the properties were jointly acquired and sought for her share of the same while insisting that MOU 1 and MOU 2 were voluntarily made by the parties. In the counterclaim, the 1st respondent sought amongst other reliefs, a declaration that the memoranda of understanding were valid and duly executed; an order directing the appellant to comply with the memoranda;and payment of N3,500,000 due to her from rent of N7,000,000 collected on jointly owned properties at No. 19B, Ogidi Crescent, Lekki, Lagos State.

JUDGMENTS OF THE TRIAL AND LOWER COURTS

In its judgment, the trial court found that the undertakings by the appellant (Exhibits A15 and A16) and MOU 1 were signed under duress, but found that MOU 2 was freely entered into between the parties. Therefore, it set aside MOU 1, but declared MOU 2 valid and binding on the appellant. The trial court thus partly upheld the appellant’s claim and the 1st respondent’s counter-claim. The appellant and the 1st respondent respectively filed an appeal and a cross-appeal to the Court of Appeal. After re-evaluating the evidence on record, the Court ofAppeal also found that the undertakings (exhibits A15 and A16) were made under duress, but held that since MOU 1 was signed 12 days after the undertaking, there was no proof that duress persisted, stating that fresh evidence of duress was required to invalidate MOU 1. Consequently, the Court of Appeal held that MOU 1 was voluntarily written by the appellant but had no legal relevance or limited effect in line with the execution of MOU 2. The Court of Appeal concluded that the appeal succeeded in part. It further held that the properties listed were not jointly acquired, as the 1st respondent failed to prove contribution to the purchase of the properties, hence it made the order sought by the appellant that the properties solely belonged to him. The Court of Appeal also held that the cross-appeal succeeded in part. It declared that MOU 2 was valid; it ordered the appellant to comply with MOU 2 to the extent that it did not affect properties proved to belong exclusively to the appellant; and it ordered the appellant to pay to the 1st respondent N3,500,000 due to the 1st respondent from the rent of N7,000,000 collected on their jointly acquired and owned properties at No. 19B, Ogidi Crescent, Lekki, Lagos State.

Still aggrieved, the appellant appealed to the Supreme Court. The appellant contended that the MOUs were invalid because they were executed by the appellant while he was under duress arising from the then ongoing criminal prosecution. On the other hand, the 1st respondent countered that no evidence of duress was led, and that the MOUs were voluntarily made in the presence of counsel. The 1st respondent further argued that the appellant having failed to repudiate the MOUs, he was bound by estoppel by conduct. In its judgment, the Supreme Court allowed the appeal in part.

JUDGMENT OF THE SUPREME COURT

Whether Deed of Assignment Based on Voided Memorandum of Understanding is Valid:

A deed of assignment based on a voided memorandum of understanding is bereft of any legal foundation and cannot operate to divest ownership. This is because one cannot put something on nothing and expect it to stand, it will certainly collapse. In this case, the deed of assignment (exhibit A30) wherein the appellant ought to have duly assigned the property situate at Lekki-Expressway known as Block 133, Plot 8, Lekki to the 1st respondent was prepared subsequent to the challenged memorandum of understanding. In the circumstance, the deed having derived its force and validity from the impugned MOUs is consequently bereft of any legal foundation and cannot operate to divest ownership. The deed was tainted by the duress that voided the MOUs and therefore cannot stand.

The Meaning of “Duress”:

“Duress” means any unlawful threat or coercion used by a person to induce another to act (or to refrain from acting) in a manner he or she otherwise could not (or would); subjecting a person to improper pressure, which overcomes his will and coerces him to comply with a demand to which he would not yield if acting as free agent. Duress therefore means threats, violence, forcible constraint or other action used to coerce someone into doing something against their will or better judgment.

The Meaning of “Duress” and What Plaintiff Alleging Duress Must Prove to Succeed:

“Duress” is the threat of harm made to compel someone to do something against their will or judgment; especially a wrongful threat made by one person to compel a manifestation of seeming assent by another person to a transaction without real volition. To be successful in a claim for duress there must be effectively no choice for the party other than to comply with the demand. The threat must be to such an extent that the pressure is unlawful and be a significant cause to inducing the person to accept the contract. The threat must also be of some significance and cause a threat to the economic interest of the party and a reasonable alternative must not be available at the time to the person.