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.