Egbase V Oriareghan (1985); Effect Of Non Est Factum On Contract
Man is by nature a social animal. An individual who is unsocial naturally and not accidentally is either beneath our notice or more than human…Anyone who either cannot lead the common life or is so self-sufficient as not to need to, and therefore does not partake of the society, is either a beast or a god.This quote by Aristotle poignantly points out the fact that interactions with ourselves as human beings is a must, and the need for this interactions often lead to the necessity of an agreement based on a contract. However, owing to human foibles, there are times when this “agreement‟ is different from the intention either party had as regards the contract.
This study therefore examines the effect that law, especially the doctrine of NON EST FACTUM has on a contract.
It further examines the principle of MISTAKE which is a precursor to NON EST FACTUM, the effect of consent, which is central to the world of contracts and most especially the plea of NON EST FACTUM.
It also takes a look at its applicability in criminal cases and whether or not the plea itself can be used as a sword or a shield by either party.
Finally, this essay gives recommendations as to how the plea of NON EST FACTUM can be improved upon.
In the law of contracts and as it has been reiterated in this long essay, consent is essential in the formation of any contract.
For a contract to emerge, there must be an offer by one party to the other, and the other, reacting to the offer indicates his acceptance of it. In other words, there has to be a meeting of the minds or consensus ad idem.
According to Salmond and Williams209
Agreement involves the apparent meeting of the minds of the parties, an apparent union of their wills. How can there be an apparent union of wills when neither party at the moment when he declares his will, can have heard the declaration to the will of the other?
So therefore, the most essential part of any contract is indeed the consensus ad idem, which is a sine qua non for the plea of non est factum.
Thus, there is automatically a degree of incapacity when a person signs a document, but has no positive belief about the nature and effect of such a contract. Thus, in Ford V Perpetual Trustees Victoria Ltd210, where a borrower did not understand that if he failed to repay a loan, he would lose his house, he had no appreciation of the significance of signing the loan agreement, it was held that from Ford‟s perspective, he could as well have been signing the document for fun. His mind did not go with the deed he signed. A classical plea of non est factum therefore.
Furthermore, non est factum is concerned with the true consent of the signer. Such where the signer‟s mind does no accompany is pen, non est factum then arises. In a country like Nigeria therefore, where a high level of illiteracy is found, there is bound to be a great amount of mistake both in the general and technical sense) in the conclusion of any form of contract (with the probable exception of parole contract which must eventually be in writing); the question to be asked at this point will then be, does this place a moral burden on the lawyer or solicitor or anybody for that matter who helps in the drawing up of the contract.
Drawing inference from the Illiterate Protection Law, which makes it imperative for the person (most times a Legal Practitioner), drawing up the document for the illiterate to explain to such a person before he or she signs, it would seem that indeed, there‟s such burden, if not moral then legal.
Though the real emphasis must be on the legal aspect, there are burdens the Legal Practitioner carries on his heart as each client approaches his counsel, not only to win a case, but in most situations to get a confidant. My submission on this issue therefore will be that yes, a moral burden arises to ensure that the true consent of the signer is obtained.
In all therefore, the establishment of the requisite consent on the platform on which the doctrine of contract and by extension, the plea of non est factum rests.
On a final note therefore, it doesn‟t require knowledge of the fact that gives rise to the plea of non est factum before it can arise, since it is now accepted that the defense may adversely affect innocent third parties who have relied on the outward appearance of a valid contract signed by the affected party.
It is a central feature in the law of contracts that in the world of non est factum, the signer of a document who intends to a document that is radically different from the one he signs has the ability to avoid being drawn into the web of the contract which is different from that which he intended
The doctrines, though subservient in a country like England where it originated and still works, is now almost an anachronism. However in a country of the third world order211 , it is a God-sent salvation bailing out thousands of unsuspecting contracting parties from the clutches of a said „concluded contract‟.
This doctrine, barring negligence affords an individual the platform to deny the execution of a n instrument sued on. Thus, providing a unique form of shield to the people, who have very knowledge of the machinations and workings of the law.
As beneficial and fine-tuned as this doctrine of non est factum may sound, some forms of improvements to the doctrine may still be suggested
Firstly, since the Nigerian Legal System os adversarial in nature, i.e. advocacy by each party, with a relatively passive judge acting as an umpire, creating a battle between lawyers each acting zealously for his client, expunging evidence that is unfavorable to such a client and bringing forward the favorable ones. It creates a form of imbalance between the haves and the haves not; since a person who is richer will arguably have the better lawyer, and thereby the better representation. In fact, Justice Roth Ginsburg212 , speaking on the United States criminal justice system which is also adversarial commented;
People who are well represented at trial do not get the death penalty213
To ensure a free, fair and level playing ground therefore, it is recommended that we make a transition to the inquisitorial legal system which places the judge in a more active role by being the one who tries to find out the truth through questioning the witnesses and the lawyers play a more passive role. This will ensure that justice is not only done, but have been seen to be done because of what use is the plea to the Nigerian masses when because of lack of funds they are left out cold in the face of justice they seek to have, by claiming the benefit of non est factum?
Also, there‟s need to review the Illiterate Protection Law214 from the position of the supreme court in Lawal V G.B Ollivant Nig Ltd215, wherein it was decided that the witnessing of an instrument signed by an illiterate is a sine qua non and a condition precedent. The mere fact that the illiterate understands his act or the nature therefore does not mean he can‟t avoid the contract
With due respect, this rule automatically creates a situation in which an illiterate may use his illiteracy as a fraud been able to use the plea of non est factum to gain the benefit of a contract yet run away from the liability as he so wishes, which is not the intention of the doctrine at all, rather, the supreme court is enjoined to depart from its previous decision and the dictionary meaning of the word illiterate which Sagay216 says is worse than useless, should be discard. Rather, the question whether a person is illiterate or not should be related to the language in which the document is prepared. This approach is well exemplified by Charles J. (as he then was) in D.O. Ntiachagwo V Emmanuel Amadu217:
A person who is unable to read with understanding and to express his thoughts by writing in the language in the document made or prepared on his behalf218
Furthermore, the character content vis-à-vis the fundamental and radical difference should be re-examined. Though it is now a settled position that where a person signs a document radically different from that which he wanted to sign, the plea of non est factum will avail him.
It must however be noted that this is a form of subjectivity rather than objectivity, since even the devil knows not the mind of a man, how can one know what exactly an individual decided to sign which was different for that which he signed as against that which he said he wanted to sign. Thus, an individual may once again be fraudulent in his dealings. Though this may not be eliminated totally, a more objective approach in the form of a trial within trial should be incorporated in the evidencing of non est factum to make it more objective in nature. Finally, though the future of Nigeria actually depends on the education of the younger generation and indeed the development of our educational sector, it behooves on the court and the entire legal system to continue to keep together the legal fabrics of our society by giving concrete legal arguments which will in turn lead to incisive decisions by our judges. This should be our aim until we also get to the position in which we might be able to say that the plea of non est factum is anachronistic to our age.
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