CRITICAL ANALYSIS OF THE PRINCIPLE OF NON-EST FACTUM {NOT MY DEED} IN CONTRACTS VIS-A-VIS CONTRACTUAL OBLIGATIONS.

By: Paul Omobhude Esq.

 

 

INTRODUCTION

Where a person signs a document or enters into a contract, it carries with it an intention that he intends to be bound by the document or the contract entered into. However, where such a person’s signature was obtained either by fraud or misrepresentation or where he signed a document which is fundamentally different from that which he thought he was signing, it will be unfair and against the weight of justice to allow such a person to be bound by that document or contract signed by him. Hence the common law introduced the principle of non est factum which operates to shield such persons from liability in respect of documents or contracts mistakenly executed by them.

CASE SCENARIO

Mr. “A” an illiterate owner of a popular line of trucks requested for an expert engineer he could employ for repairs of his truck any time they broke down or got spoilt. “B” represented himself to “A” as a qualified engineer with expansive experience in the repair of trucks. In fact, “B” had contacted “C” who is a trusted friend of “Mr. A” to vouch for him and also interpret the repair contract to be executed between “Mr A.” and “B”. “C” read the purported contract of repairs to “A” but failed to read the whole contract which would transfer all of “Mr. A”’s trucks to “B” after a period of 6 months. “Mr. A. Signed the contract believing he was executing a contract solely for the repairs of his truck. At the expiration of 6 months, “B” sued “Mr. A” for possession on the ground that “Mr. A.” was bound by the contract duly executed by him.

 

Definition and Meaning of Non-Est Factum

The phrase “quod scriptum predictum non est factum” or simply put “non est factum” is a Latin phrase which means “that which is claimed I wrote is not my deed” or “it is not my deed”.  It connotes that a document executed by a person in ignorance or by mistake cannot be held out against such a person. The defense of non est factum carries with it a legal implication that a written agreement is void because the defendant was mistaken about its character or content when signing it or that what he signed is radically different from what he intended to sign.

In Ogunleye v State {1991} 3 NWLR {Pt. 177} at 1 the court defined non est facum as a plea whereby the defendant either alleges that he did not execute the deed in question or that he was labouring under a mistake as to its nature when he executed same. It is pertinent that the plea is only available in civil proceeding, therefore the plea is not available to a defendant in a criminal proceeding who intends to deny his confessional statement as involuntary.

Origin/History of the non est factum doctrine

The doctrine of non est factum finds its roots in Common Law principles relating to the execution of deed which was regarded as solemn in nature and therefore binding at all times except it was cancelled. Therefore, as early as 1313 {13^th Century} non est factum was available as a defense only to the those who could not read as a result of either blindness or illiteracy to a claim based on promise made under seal or by deed.

But by the 19^th century, there was a gradual shift with respect to the persons who could rely on the principle of non est factum, it was extended to cover all documents whether under seal or not and persons who could read and write on the basis that the mind of the signatory did not accompany the document. This was introduced by the celebrated English case of Thoroughgood v Cole, {1582} 2 Co Rep 9a.

The fact of the case is that Thoroughgood’s tenant, William Chicken presented a deed to Thoroughgood his landlord to the effect that he is relieved from all arrear of rent he owes his landlord and that his is relieved from the right to recover the land. The deed was read over by a bystander who indicated to help Thoroughgood understand the import of the deed. The bystander however, misrepresented the import of the document to state that the tenant was relieved from his arears in rent after which the landlord could have his landback. The deed was signed and sealed by Thoroughgood.  In an action to recover the land, Thoroughgood pleaded non est factum, the Court held that the defence would apply, as his mind did not follow his signature on the deed and that the character and content of the deed was of a different class as to what he intended to sign or what he thought he was signing.

Therefore, Thouroughgood’s case expanded the limit of the application of the doctrine to all documents which were not signed by the person alleged to have signed it {forgery} or documents which though signed by the person was radically different in from what the signatory intended to sign.

Non-est factum principle in Nigeria jurisprudence

The case of Sylvester Egbase v Augustine Oriareghan  {1985} 2 NWLR {Pt. 10} 884 which is the locus classicus for the application of the principle of non est factum in Nigeria gives the boundary for the applicability of the doctrine in Nigeria. In that case the Respondent was availed a loan in the sum of N500. He executed a conveyance as security for the loan, transferring ownership of 15 Rooms building to the Appellant, on the ground that if he fails to repay same within 6 months the House becomes that of the Appellant. In fact, the document was drafted as between a purchaser and Vendor. He failed to repay, and the Appellant sought to evict him from the property. His defense of being an illiterate failed on the strength of the evidence that the document was read and interpreted to him by his solicitor who testified in that regard.

The Court went on to say that if a man of full age and understanding fails to read a document which is intended to have legal consequences, he cannot turn round to say that the document was different in character or nature as to the one he intended to sign.

 

The Courts have since followed this principle in plethoral of cases to wit: the case of Enemechukwu v Okoye {2017} 6 NWLR {Pt. 1560} 37 at 44 Ratio 18, wherein the Court stated thus:

“In the absence of fraud, duress or plea of non est factum, the signature of a person on a document is evidence of the fact that he is either the author of the contents of the document that are above his signature or that the contents have be brought to his attention. It does not matter that he did not read the contents of the documents before signing it.in other words, a party is estopped by his deed and a party of full age and understanding is bound by his signature to a document, whether he reads or understands it or not”

In the same Enemechukwu v Okoye {supra} Ratio 19 the Court held that:

It is only a party that has been misled into executing a deed or signing a document essentially different from what he intended to execute or sign that can plead non est factum – Ratio 19

 

Also in Okoli v Morecab Finance {Nig} Ltd.  {2007} 14 NWLR {Pt 1053} 37 at 46 Ratio 11, the Court emphatically held that:

Where a person of full age and discretion signs a document in the full knowledge of the nature and not necessarily knowledge of the contents of the document, it will not avail him to complain that he did not know the contents of the said document. It would be very dangerous to allow a man over age of legal infancy to escape from the legal effect of a document he has, after reading it, signed in the absence of an express misrepresentation by the other party of that legal effect.

From the foregoing, non est factum will not aid a person who chose to be ignorant or for act of laziness failed to read a document before executing same. Hence, the doctrine will only be available to person who was misled to execute a document which is fundamentally and radically different from the document he intended to sign.

Concept of Contract and Elements of a valid Contract

A contract has been defined as an agreement between two or more persons which creates in the parties reciprocal legal obligations to do or not to do particular things.” For a contract to become valid in law, certain elements must be present, they are

• Offer: an offer connotes a promise that one party makes in exchange for another party’s performance.

 

• Acceptance: In Orient Bank {Nig} Plc. V. Bilante International Ltd. {1997} 8 NWLR {Pt. 515} 37 at 77; acceptance was defined as the reciprocal act or action of the offeree to the offeror in which he indicates his agreement to the terms of the offer as conveyed by the offeror. Acceptance may be demonstrated by {a} conduct of parties {b} their words or {c} documents exchanged between the parties.

 

• Consideration: It refers to the price the offeree must pay for the promise of the offeror

 

• Intention to enter or create legal relations: Parties will only be bound by contract where there is an intention that they intended to be bound by promises made. See Balfour v. Balfour (1919) 2 K.B. 571

 

• The parties have the capacity to contract: Generally, infants, insane people and drunkard or persons under intoxication do not posses the capacity to enter into a contract, except in cases of infants, the contract is for necessaries or for insane and intoxicated people, the contract was made in moment when they were sober or they ratify contract made in their moment of unsoundness.

 

Vitiating Elements of Contract and the principle of non est factum

Vitiating elements of contract refers to factors that may render a contract void or voidable. They are factors that may render a contract unenforceable. Below, we shall attempt to examine the vitiating elements of contract and their import on the plea of non est factum.

1. Misrepresentation
2. Duress
3. Undue influence
4. Illegality
5. Mistake

Misrepresentation and non est factum

A misrepresentation is an untrue or false statement of fact made by one party, which induces the other party to enter into an agreement or contract.

In  Chief Isicheri Udogwu v. Dr. Festus Oki, (1990) 5 NWLR (pt. 153) p. 723; the Court held that where a party induces another to enter into a contract on the presupposition that a fact which does not exist, exits, the party induced can sue for damages upon the deceit.

The effect of misrepresentation is that it does not make the contract void ab initio, rather it renders it voidable. A party to whom facts have been misrepresented can sue for damages, or rescind the contract or sue for indemnity.

However a party who raises the defense of non est factum on the ground that a contract was executed as a result of a misrepresentation  has a duty to prove that the misrepresentation affects the nature and character of the document and not merely that its contents was different from what he thought he was signing; only then  would the defendant be entitled to treat the contract as void on the basis that his mind at the time of the execution of the contract did not follow his signature therein.  See Thorough Goods case {Supra}

Duress and non est factum

Duress is pressure brought to bear upon one of the contracting parties to induce him to enter into the contract. Duress is threat of violence or actual threat of violence on one of the contracting parties. Duress renders a contract void.

In Parojcic v. Parojcic {1959}1 All E.R. 1 at p. 3 the Court stated “that the effect of duress on a marriage is the same as it is on a contract, viz., to render it not void but voidable.”

In the same vein where a party to contract plead that the signature in the contract is not his deed because same was gotten by coercion, the plea is bound to succeed.

Undue influence and non est factum

The Court in First Bank of Nigeria Plc v. Akinyoseye, (2005) 5 NWLR (pt. 918) 340, the Court stated that: undue influence means any improper or wrongful constrain, machination or urgency, or persuasion whereby the will of a person is over-powered and he is induced to do or forebear an act which he should not do or do if left to act freely. Undue influence renders the contract voidable and not void ab initio.

But in relation to non est factum doctrine,  a party can treat a contract as void where he  successfully proves that same executed due to undue influence.

 

Illegality and non est factum

The Court in Total Nig. Plc v. Chief Elija Omoniyi Ajayji, (2004) 9 FWLR (pt 229) p. 183., defined an illegal contract as, “a contract which contravenes our statutory laws or which contemplated action in it is contrary to statutory law or against the public policy.” All illegal contract is void ab initio, the Court cannot breathe on them neither can it be enforced. The unenforceability of illegal contract is expressed in the maxim: Ex turpi causa non oritur actio, meaning that no action can arise from an illegal act.

Therefore, a party simply must establish that the contract is illegal and need not raise the plea of non est factum.

An example is where A, contracts B to break into the national museum to steal an artifact, where B fails to perform the contract, A cannot sue B for specific performance of that contract.

Mistake and non est factum

Mistake is some unintentional act, omission or error arising out of ignorance, surprise, imposition or misplaced confidence. Mistake has a more restricted meaning in law than in the ordinary usage of the word. Mistake in law connotes circumstances in which the law permits a party to a contract to repudiate and resile out of it on the ground that if the true position was known to him, he would never have entered the agreement.

Although non est factum arises from the honest mistake of a party in a contract, there exist a slight difference between non est factum and mistake stricto senso. The difference is that where a document which is non est factum is a nullity and cannot be enforced by an innocent third party, a document signed by mistake arising from fraud, is voidable and an innocent third party who pays money on good faith can enforce it.

Mistake can either be:

1. Common mistake: Both parties to the contract concluded it under the same (common) mistake or misapprehension about some facts which lie at the basis of the agreement.
2. Mutual mistake: Each party misunderstands the other’s intention, it is also termed bilateral mistake
3. Unilateral Mistake: where one party to the contract is under a mistake of fact which is known to the other party, or the other party is presumed to know that the first party is indeed laboring under a mistake.

In the case of Abraham (on behalf of the Grand United Order of Odd fellows, Faith Lodge) v. Chief Oluwa (1944) 17 N.L.R. 123. Where a plaintiff on the mistaken belief that he did not possess good title to the land he had earlier bought from one Olotu family, bought the same piece of land on auction from the Respondent who armed with a judgment of Court, issued a writ of fi fa over the land in satisfaction of the judgment on the belief the land belongs to Olotu. The Plaintiff having discovered that he had good title to the land rescinded the contract. The Court held he was entitled to recover his money.

From the foregoing, it is easy to deduce that while vitiating element of contract mostly do not render a contract void ab initio, the successful plea of non est factum in connection to the vitiating elements of contract renders a contract void ab initio.

Application of non est factum principle on contracts entered into by illiterate persons

The major rational for the non est factum principle is the protection of the blind, weak or illiterate persons who for no fault of theirs may be unable to read or understand the purport of contract being executed by them, so that they will not be taken undue advantage of.

Section 3 of the Illiterate Protection Act, LFN, 2004 imposes an obligation that a person writing a document on behalf an illiterate person must write on such document his name and address and the fact that he writes on the authority of the illiterate person. Furthermore, that prior to the signing of such document by the illiterate person that the document was correctly read over to him and he understands same. This provision is also known as the illiterate jurat.

Therefore where an illiterate person or a blind person is made to sign documents without first having been read nor interpreted to them, the defense of non est factum absolves them from liability arising from the contract and cannot be enforced against them.

In Halliday v. Alapatira 1 NLR 1, it was held that the delivery of a printed circular to an illiterate person without an explanation of its content does not convey notice.

Also in Bala Angyu v. Alhaji Shehu Malami & Others (1992) 9 NWLR (pt. 264) 242.; the 2^nd Appellant who was an illiterate who could neither read no write was held to be entitled to damages against the Respondent Bank who made unauthorized deductions from the Appellant’s account without consent or explaining the purpose.

The Defence of non est factum in a contract of Guarantee.

A guarantor is a person who undertakes to discharge the debt or liability of a third party in a loan transaction in the event the third party fails to discharge them.

In CBN vs. Intersella Comm. Ltd {2018} 7 NWLR {Pt. 1618} 294 at 308, Ratio 18, the Court held that a guarantor is technically a debtor because where the debtor fails, the guarantor will be called to pay the money owed.

A guarantor can raise the defence of non est factum where the guarantee was obtained by fraud, misrepresentation or concealment of material facts.

In African Continental Bank Ltd v. Khali & Anor, (1967 – 1975) 2 N.B.L.R. 356. The plaintiff granted a loan to the 1^st Defendant on the guarantee of the 2^nd Defendant. But without recourse to the 2^nd Defendant, the Plaintiff went ahead to grant another overdraft to the 1^st Defendant relying on the guarantee of the 2^nd Defendant in the first loan. The Court held the 2^nd Defendant could not be liable for the 2^nd loan as the 1^st guarantee was radically different in class and nature from the 2^nd overdraft availed the 1^st Defendant

But in Barclays Bank of Nigeria Ltd v Okotie-Ebo {Unreported, High Court of Lagos, Taylor C. J. Suit No: LD/1233/71.}  The plea by the 1^st Defendant that she was not aware that the document she signed was to guarantee a loan, failed on the ground that she was sufficiently literate to have a general idea of the meaning of the word “guarantee‟ in bold prints in the document signed by her.

From the foregoing, a guarantor could raise the defense of non est factum where the guarantee was obtained by misrepresentation or fraud, or where the guarantee given is radically different from what he intended to sign and that he was not negligent.

Qualification for the Defense of non est factum

1. Negligence: A defendant must show that he was not negligent at the time of signing the document. The law will not allow a reckless or careless defendant to retract his deed, simply because he didn’t pay attention to the contents of the document. Negligence is fatal to the defense of non est factum.

In the case of Sylvester Egbase v Augustine Oriareghan  {supra}, the Court held that if a man of full age and understanding fails to read a document which is intended to have legal consequences, he cannot turn round to say that the document was different in character or nature as to the one he intended to sign.

 

2. Only a signatory to a document or his legal successors or assignee can rely on the defense of non est factum with respect to the content of such document. In Ajaka v Ibru {1976} 6 U.I.L.R pt. 194, the Plaintiff claiming to represent the community youth brought a claim requesting the Court to set aside the grant of a community land to the Defendants made by 14 elders. The Court held that since the plaintiff wasn’t among the 14 elders, the defense cannot be substantiated.

 

3. A person relying on the plea of non est factum must establish that the document he signed is of a different Class or nature from what he intended to sign and he must show that he has not been negligent in the transaction- Foster v Mackinnon {1869}LR 4 CP 704. In Howatson v Webb {1907} 1 Ch. D.I, the Defendant executed a mortgage without reading the deed, he however knew it was a conveyance in some way to dispose his land, but was induced to believe he was signing a conveyance. The Court held that they were of same class and not radically different from what he intended to do.

 

4. The defense if only applicable to civil or commercial transaction, therefore a defendant cannot plead the defense of non est factum in a criminal trial with respect to confessional statement.

 

Challenges to the application of the principle of non est factum

• The major challenge with the application of the principle of non est factum is that asides from the fact that the Court will grant the defense when a signatory to a document can prove that the document signed was radically different from what he thought he was signing and that there was no negligence on his part, there are no uniform rules for the application of same, the Court will decide each case based on the peculiar fact of the present case at hand. Furthermore, due to the fact that most jurisdiction like the USA, United Kingdom and other developed countries now have a very minimal level of illiteracy, the principle appears not to have evolved further from what it is at present.

 

• Another challenge is the fact that in Nigeria, a signatory to a document may be discouraged to challenge same in Court due to delay in Court proceedings and high cost of prosecuting cases.

Recommendations

• My humble recommendation is that to reduce the frequency of people or business men being defrauded, the government must invest more in the level of education and enlightenment of its citizens.

 

• Furthermore, parties in a commercial transaction should seek proper advice and guidance before appending their signature to any documents which is capable of creating a legal binding obligation on them

 

• Practical steps should be put in place for the fast track of trial and determination of civil and commercial cases in Nigeria so as to boost the confidence of litigants in approaching the Court to enforce their rights

 

Conclusion

While the application of the non est factum principle is quite commendable in its stride to protect the interest of blind, weak or illiterate persons while engaging in commercial transactions or signing of contracts, however, it is important  that the Court must exercise caution in the application of same so as not to provide a cover or a legal cloak  for signatories of document who after they may have signed documents which have been relied on or which has affected the position of other persons renege from same so as not to be bound by the document they have signed.