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

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

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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 language of the document. In addition, the doctrine may protect those who have been tricked into signing a document.[2] 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.[3] 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.[4] 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.[5] 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. Oriareghan[6]

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.[7] The relevance of the doctrine in present day Nigerian legal practice is also being challenged in certain quarters. The doctrine is also being viewed as ambiguous in the definition of the required degree of carefulness or negligence to invoke the plea.[8]  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 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,[9] 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,[10] 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,[11] 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,[12] 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 scope of the doctrine. For instance, Sreenath[13] 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, Kiwi[14] 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 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.  


[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.nialsnigeria.org/journals/NCLR1.pdf. Accessed 18/3/2014. 2 Literally means “it is not my deed”.

[2] 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).

[3] 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

[4] Graham Virgo (1999), Principles of the


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