APPRAISAL OF THE DOCTRINE OF NON EST FACTUM UNDER THE NIGERIAN LAW OF CONTRACT

ABSTRACT

It is the practice in most legal systems and jurisdictions for litigants in cases of fraud, misrepresentation, mistake etc to maintain that documents which they purportedly signed did not represent  the  exact  character, nature or content  which  they believed  the documents contained. Again, illiterate contracting parties often thumb printed on documents which in some instances are incorrectly read over to them as being correct whereas they may not be. These positions  have caused a lot  of  acrimony and  disagreement  between  not  only the contracting parties but also to individuals. The essence of this dissertation is therefore to appraise the remedies available to persons or litigants who were induced by fraud, duress, undue influence, misrepresentation etc to sign documents which they signed. The plea is often raised as non est factum suum “what that script says or predicts is not my act”. It is a defence for those who were misled into signing documents fraudulently. This rule originated as a limited defence to the proposition that a person is bound by any document signed by him. It developed in medieval times when few people could read or write and depended on others to accurately describe the contents and meaning of a deed. Thus if the terms of a deed were read or explained in such a manner that the deed did not in fact represent the true intention of the signor, he could escape liability on the basis that he would not have signed had the true situation been revealed to him. This work sets to appraise the rule, its benefits as a check on dishonest contractors who would wish to hide under its cloak to commit fraud. The danger inherent in the invocation of the rule is that the signer of the document must establish that he is  neither  careless  nor  negligent.  The  work  discusses  various  methods  of  entering  into contract as well as some vitiating elements of contract which are or may be said to be because they are analogous to the rule. The overall aim of the work is to find out whether the doctrine is still relevant in the present day Nigeria in view of the literacy level. It proffers advice on how it can be made more relevant due to the prevalence of corruption in the country today. Is the doctrine of non est factum still relevant in the present day Nigeria in view of the stringent conditions in proving it? How can the doctrine be extended for the benefit of disadvantaged people like: the senile, the low intelligent, unsuspecting friends, co-contracting parties and family members, alike,  who out of ignorance, trust or friendship are misled into signing documents which are different in character from the ones which they thought they signed? Is there a significant lacuna in the country‟s contract law in respect of the protection of the disadvantaged classes of citizens as contractors and is the law adequate enough to cater for them? The scope covers the law relating to the doctrine of non est factum in Nigeria, and compares it with the Illiterate Protection Act, and other similar legislations. The research adopted expository, analytical and comparative methods, with reliance on primary source materials – statutes and case law, secondary source materials like textbooks, journal articles, workshops, newspapers, magazines and relevant internet materials.  It is submits that the doctrine with other associated statutes remain vital in the regulation of the contractual obligations which inhere between illiterates, non illiterates, blind etc and other parties.

CHAPTER ONE: GENERAL INTRODUCTION

This study sets out to critically appraise the rule of law with special emphasis on the doctrine of non est factum and its applications under the Nigerian Law of Contract. This is with a view to examining its benefits as a check on dishonest contract agreements, abuses by fraudulent parties and individually, the various dimensions and ramifications of  non est factum and its possible relevance or otherwise for the future direction and enrichment of the country‟s legal practices. Finally, it gives recommendations as to how the plea of non est factum can be improved upon especially in the country‟s legal jurisprudence.

1.1.      Background of the Study

An important principle of English Common Law is that a contract is a species of agreement whereby a legal obligation is constituted and defined between the parties to it. There are a variety of contracts which must be in prescribed form; that is, in writing or under seal.1 Parties to such contracts are at times bargaining not on equal basis as a result of some incapacity. At times also friends have misled each other into signing documents which are quite different from what the purport them to be. To cure

ostensible fraud arising from such incapacities and deceit perpetrated by the other party to  such  contract  and  documents,  the  law  has  devised  some  Common  Law principles to protect such disadvantaged parties. One of such protective instruments is the Common Law plea of non est factum.2 The doctrine was developed by the English courts to protect those who signed legal documents mistakenly.

Where the doctrine applies, a person who mistakenly signs a contract or deed is not bound thereby. A classic example is a blind person who executes a document after it had been incorrectly read over to him or her.  The doctrine may also protect anyone who through no fault of his, has no understanding of the meaning and effects of a document but was deceived into signing it. It avails the ill, the infirm, those of low

intelligence,  the  seriously  under-educated,  and  those  unable  to  understand  the

1 Gatta Ayodele, “An Overview of the Plea of non est factum and section 3 of the Illiterate Protection Law” 1994 of Lagos State in contracts made by illiterates in Nigeria p.1. Available at http://www.nials- nigeria.org/journals/NCLR1.pdf. Accessed 18/3/2014.

2 Literally means “it is not my deed”.

language of the document. In addition, the doctrine may protect those who have been tricked into signing a document.3  So, contracts signed under force, threat, coercion, ignorance, etc are void or voidable. Meanwhile, under

the law, he who does not claim his rights has none. non est factum is a claim, or potential claim, ex post facto.4  The doctrine also applies where there is a grossly misleading summary of the terms of a contract or where there is perceived fraudulent misrepresentation or clear intention to it.5  However, people might find it difficult to hide under this law to defraud others, because, It would not protect a negligent or careless signatory, nor one who makes non-fundamental mistake about the nature of the document that he or she is signing.  Again, in most cases simple ignorance about the contents of the document will not bring the doctrine into play.6  That notwithstanding, this doctrine has been criticized in some quarters that it provides a lacuna for fraudulent-minded people to escape judgement. This school of thought argues that the doctrine of non est factum is an umbrella to be hidden under and used as a sword against weary contracting parties. However, some learned jurists disagree here.

For instance, as aptly put by Karibi – Whyte J.S.C., in Egbase v. Oriareghan7:

It must be noted that the plea of non est factum is not one through which fraud can be perpetuated. The protection offered by the law is to ensure that a person is not held bound by the terms of a document which he should not have signed, but signed due to fraud or mistake.

Again,  the  doctrine  is  alleged  to  be  limited  in  scope,  applying  only  to  certain categories of people in the society and to mainly civil matters.8 The relevance of the

doctrine in present day Nigerian legal practice is also being challenged in certain

3 Alasdair Taylor, doctrine of non est factum, posted on Thu, 28/06/2012 – 16:45, http://www.seqlegal.com/blog/non-est-factum-21st-century, accessed 20/02/2013. Thoroughgood’s case (1584) 2

Rep.569).

4 Sean, Permalink (2013), non est factum has lots of manifestations, posted on Tue, 18/06/ – 04:48, http://www.seqlegal.com/blog/non-est-factum-21st-century, accessed 20/02/2013

5 Graham Virgo (1999), Principles of the Law of Restitution, page 178, – Google Books Result, http://www.books.google.com/books?isbn=0198763778, accessed 20/02/2013.

6 Lloyd Duhaime, non est factum – Legal Definition -Duhaime.org, http://www.duhaime.org/nonestfactum.aspx accessed 20/03/2013.

7 Egbase v Oriareghan (1985) 2 NWLR (Pt 810) 884

8 Mondaq (2005), “non est factum” The Paradox in Contract Law, http://www.mondaq.com/…/Non+Est+Factum+The+Paradox+in+Contract+Law, accessed 20/02/2013.

quarters. The doctrine is also being viewed as ambiguous in the definition of the required degree of carefulness or negligence to invoke the plea.9   Some commentators are also worried that considering the high illiteracy rate in the country, not many people  are  really aware  of  their  right  to  repudiate  an  almost  concluded  contract through this doctrine.  All these raises some critical questions regarding the relevance, applicability and benefits of this doctrine in the present day legal practice in Nigeria,

which is the major thrust of this study.

1.2.      Research Questions

The following research questions serve as compass for the search of answers in this study:

i.      Is the doctrine of non est factum still relevant in the present day Nigeria in view of the stringent conditions in proving it?

ii.      How can the doctrine be extended for the benefit of disadvantaged people like: the senile, the low intelligent, unsuspecting friends, co-contracting parties and family members, alike,  who out of ignorance, trust or friendship are misled into signing documents which are different in character from the ones which they thought they signed?

iii.      Is there a significant lacuna in the country‟s contract law in respect of the protection of the disadvantaged classes of citizens as contractors and is the law adequate enough to cater for them?

1.3.      Statement of the Problem

In spite of the global acclaim of the doctrine of non est factum as „a saviour‟ of the helpless, hapless, weak and disadvantaged people in society; the illiterates, the blinds, the  senile,  the  low  intelligent,  unsuspecting  friends,  non-diligent  co-contracting parties and family members, a myriad of problems still lie in the way of its full application and consequent optimal benefits to the aforesaid class of citizens. For instance, the relevance of the doctrine in the present day Nigeria is being queried in certain quarters, in view of the stringent conditions in proving it. To this school of thought, the doctrine thus becomes in Igbo parlance the mythical “odi nso eru aka”

(unreachable goodies). The problem associated with the plea is the stringent burden

9 Alasdair Taylor, op.cit.

placed on the party who wants to invoke it; that of proving that he was neither careless nor negligent. This again poses a definitional problem of ambiguity as to what constitutes carelessness or negligence and what is the degree of carefulness or diligence required to invoke the plea? Hence, this implies a significant lacuna in the country‟s contract law in respect of the protection of the helpless and hapless citizens via the doctrine, they claimed. Another problem is that the doctrine appears to be discriminatory on the type of document – character and nature. There is also another school of thought that argues that due to the high rate of illiteracy in the country, majority of the citizens are unaware of this invaluable doctrine, thus, cannot avail themselves of the inherent legal opportunities it offers. All these raise some critical questions as to how the doctrine could be made more relevant and beneficial to citizens of this country,   made usable in criminal proceedings, be brought to more public awareness, and how could the country‟s laws be strengthened to address the alleged lacuna that obstructs its full application or invocation? This study tried to find the answers.

1.4.      Objectives of the Study

The broad objective of this work is to critically examine the relevance and benefits of the contractual doctrine of non est factum in present day Nigeria in view of the stringent conditions in proving it. The specific objectives include to:

i.      Ascertain the relevance of the doctrine of non est factum in the present day

Nigeria, in view of the stringent conditions in proving it.

ii.      Determining  the  extent  the  doctrine  could  be  extended  for  the  benefit  of disadvantaged people like: the illiterates, the blinds, the senile, the low intelligent, unsuspecting friends, co-contracting parties and family members, alike, who out of ignorance, trust or friendship are misled into signing documents which are different in character from the ones which they had in mind.

iii.      Critically examine how the doctrine can be brought to more public awareness in view of high level rate of illiteracy in the country and public ignorance of the existence of this legal opportunity, even as a defense to an already concluded contract.

iv.      Reveal the lacuna in the country‟s contract law in respect of the protection of the afore-named disadvantaged classes of contractors and the inability of the law to adequately cater for them.

1.5.      Significance of the Study

The study embodies some significance in various shades of life which include: the field of legal practice, the Nigerian judicial system, the under-privileged in society and the field of legal studies. To the field of legal practice, this study is expected to make the doctrine of non est factum a much more valuable tool in the hands of practitioners. By so doing, it is expected to enrich the Nigerian judicial system by enlarging its scope and making it much more acceptable to the citizenry, especially the under-privileged. The study is also significant to the field of legal studies by revealing  the  pathetic  case  of  the  illiterates,  the  blinds,  the  senile  and  similar physically challenged citizens in our law of contract, and the ways to fully accommodate the fundamental human rights truly in practice, especially the right to fairhearing. It also offers insight into the difficulties associated with invoking the plea of non est factum and how best to address the problem in the country‟s laws.

1.6.      Scope of the Study

The scope covers the law relating to the doctrine of non est factum in Nigeria, and compares it with the Illiterate Protection Act, 23 and other similar legislations. It also very copiously examined the continued relevance and utility of the plea of non est factum in the Nigeria Legal System.

1.7.      Methodology

The research method adopted in this work is expository, analytical and comparative. The work assesses various methods in which unsuspecting parties are fraudulently made to sign documents which they would not have signed had they known their contents. It analysis comparatively too, the position of the doctrine of non est factum in the Law of Contract in Nigeria. Reliance is made on primary source materials – statutes and case law. Secondary source materials include textbooks, journal articles, workshops, newspapers, magazines and relevant internet materials.

1.8.      Literature Review

Some authors have written textbooks, articles and commentaries on non est factum and mistake, which non est factum is part of. Several authorities whose works discussed salient issues on the subject were referred to in the course of writing this work. Chitty,10 discussing the doctrine opines that non est factum is a defence which avails a person who mistakenly signs a document different from the one he thought he was signing in a manner not showing negligence. He maintains that if an illiterate man, to whom the

provisions of a deed that had been wrongly read, executed it under a mistake as to its contents, he could say that it was not his deed.

Okany,11  discussing non est factum under Mistake says that it is a defence under the common law that allows a party who had wrongly signed a deed to escape liability from it by asserting that the signature on the deed was not his. He stresses that the defence was initially limited to wrongly signed deeds and documents by blind and illiterate persons, but later became a universal common law plea whenever a party to a contractual agreement successfully established that he appended his signature to the document in consequence of fraud perpetrated by another person. Richards,12 is of the view that for the defence of non est factum to avail any party, three principles must be proved. They are (1) the party signing must establish that he is under some disability, such as illiteracy, blindness or senility, (2) the party must show that the document signed was different in nature from the one he thought he was signing and, (3) the

party must show that he was not careless in signing and that he took all reasonable precautions to ascertain the contents and significance of the document to be signed. Treitel,13  states that the scope of the doctrine of non est factum is now restricted in three ways. It only applies in favour of specified categories of persons; the mistake must be a serious one, and the signer must not have been careless. Sagay14  observes that the plea was originally available for the benefit of blind or illiterate persons alone, but it was gradually extended to normal and literate persons.15  Meanwhile

arguments of some lacuna in the doctrine exist. These include the alleged narrow

10 J. Chitty, Chitty on contracts, 31st edn., vol. 2 (London: Sweet & Maxwell, 2014) p.19.

11 M.C. Okany, Nigerian Commercial Law (Onitsha: Africana-Fep Publishers Ltd; 2009) p.151.

12 P. Richards, The Law of Contract, 12th Ed; (Pearson Longman 2015) p.229.

13 G.H. Treitel, The Law of Contract 11th edn; (London: Sweet & Maxwell, 2003) p. 251.

14 Itse Sagay , Nigerian Law of Contract, (Ibadan: Macmillan Publishers, 2009), p23.

15 Ibid, p.277.

scope of the doctrine. For instance, Sreenath16 asserts that the judiciaries in almost all the common law countries were consistent in their averments that the plea of non est factum is a plea which must be kept within narrow limits.  Dobson17  buttresses this point that the plea of non est factum is available only within narrow limits and the onus is on the person who wishes to rely on it, but it is not available if the signer acted carelessly. Others point to the difficulty in proving non est factum which they say is quite enormous. For instance, Kiwi18 observed that there are five major hurdles a jury must pass in order to prove non est factum successfully and articulated them as follows:

(1) The Person must believe the document has specific character and effect;

(2) The Document must actually have a radically different character and effect; (3) Mistaken belief must result from an erroneous explanation;

(4) Must act with all reasonable care in all the circumstances, and

(5) If advice is of a trusted advisor, one can‟t rely on it.

Yet another lacuna in the doctrine said critics is the difficulty in its applications due to ambiguities in the definition of what constitutes a mistake. According to Sagay19 what may be regarded as mistake by the layman, will in most cases not be so regarded at law, and this restricted scope brings the problem of lack of a consensus, since justice ought to be seen by all parties as having been reasonably discharged. All these raise doubts in some minds as to the relevance and benefits of the doctrine of non est

factum in today‟s Nigeria.  Consequently, a wide gap exists on the exact conditions which must be fulfilled before the defence can avail a victim who wants to invoke the doctrine of non est factum in Nigeria, which this study intends to fill.

1.9.      Organization of the Chapter

This research will be covered in six chapters. Chapter one which is a general introduction of the work gives us a background on the doctrine of non est factum as

16 Sreenath Lalitha (2009), http://www.mondaq.com> accessed on 22 September 2013.

17 P. Dorbson Charlesworth’s Business Law, 16th ed. (Sweet & Maxwell, International Students‟

Edition, London 1997) p.16.

18 Contract Law 202, 2010. <kiwi.law[email protected]> Accessed on 6th September 2010.

19 Sagay, Op.cit.p.188.

practiced in the Nigerian legal system, its problems and prospects, and the consequent questions that have been raised for and against it in the polity were perused. The motivations for the study and the set objectives to be tackled were also highlighted. The chapter also gives an array of some significance of the study to the field of legal practice, the Nigerian judicial system, the under-privileged in society and the field of legal  studies.  The scope covered  in  this  study and  the adopted methodology for effective handling of the research was also given, thus, setting the framework for the succeeding  chapters.  In  chapter  two,  the  doctrine  of  non  est  factum  and  its applicability to law of contract will be examined. This chapter will also examine the conceptual framework, the evolution and development of contract law, the methods of entry into contract, methods of electronic contracting, legal recognition of electronic contract, the relevance and benefits to disadvantaged people and conclusion.

Chapter three, non est factum and other vitiating element will be examined. This chapter will cover the concept of vitiating elements in contract, misrepresentation, duress, undue influence, illegality, mistake, forms of equitable relief, some lacuna in the Nigerian contract law and conclusion. Chapter four non est factum in the context of contract of guarantee will be examined, while chapter five applicability of the doctrine to illiterate and similar people will be assessed and the final chapter will summarise, recommend and conclude the research.

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