CHAPTER 1
GENERAL INTRODUCTION
1.0.0: INTRODUCTION
Every contract springs from a legally enforceable agreement between the parties. According to Okany M.C.,2
First there must be an agreement between the parties. The parties
must be certain as to the terms of their agreement.
Stating further, he said;
A contract must of necessity involve two parties…3
Of the two parties, there must be an offeror; while the other party will be the offeree. It can therefore be inferred that for a contract to come into fruition, there must be an offer, an acceptance and a consideration which must move from the promise.
Therefore, according to Sagay4:
For a contract to exist there has to be an offer by one party to another and an acceptance by the person to whom the offer is addressed5.
Succinctly captured by Okany he posited:
One of the parties will make an offer and the other will indicate its acceptance. Secondly, there must exist an obligation which is reciprocated by the other party to the contract. The parties to the contract are obliged to perform their respective promises or
obligation under the contract.
An offer is then defined as
4Sagay I.E. Nigerian Law Of Contract (2nd Ed Spectrum Law Books, Ibadan 2000) P. 8
5 Ibid. P. 8
A definite undertaking or promise made by one party with the intention that it shall become binding on the party making it as
soon as it is accepted by the party to whom it is addressed. It
must therefore be precise and unequivocal6.
An acceptance can be seen from the view point of an agreement to receive that which is offered. This view point is supported by Tobi J.C.A. in Orient Bank V Bilante Int’l Ltd7 when he said:
Putting it in another language, acceptance is the act of compliance
on the part of the offeree with the terms of the offeror.
The third party of this contract trinity is consideration, which in simple language is an exchange of anything which is of value in the eye of the law. The basic feature of this doctrine is reciprocity.
However, even though the above explained terms are sine qua non in the law of contract, seemingly much more important is the idea of the meeting of the minds, generally referred to by the Latin phrase Consensus Ad Idem
If either or both the parties to the contract err in the understanding of any of the terms, (much more; essential terms), of the contract, apparently, there will not be any consensus. To have a blanket rule automatically and categorically rendering such agreements unenforceable will trigger more problems than it aims to solve by the blatant abuse of the rule with impunity.
To prevent such abuse of the legal provisions, the common law has evolved some rules dealing with mistakes.
One kind of Mistake that gives the courts difficulty of interpretation is that which involves a party who mistakes the kind of contract being signed. Suppose a person signs away the deed to a house, thinking that the document signed was only a guarantee for another person?s debt
or an attestation of a will as a witness, under the law of contract, in such situations, the person who has signed under the mistaken impression as to the nature of the document might be able to plead NON EST FACTUM to avoid the contract.
The Latin phrase NON EST FACTUM literally means „it is not his/her deed?. It is a special defense in contract law which allows a person to avoid the stipulations in a contract signed because of certain reasons such as mistake as to the kind of contract.8
These general set of rules in relation to mistakes and particularly those guiding documents mistakenly signed will be examined. Its rights, wrongs and its rules of engagement.
From the above however, it will seem like the doctrine of NON EST FACTUM is an umbrella to be hidden under and used as a sword against weary contracting parties, however, it must be noted that this plea is not one through which fraud can be perpetuated. In fact, as aptly put by Karibi – Whyte J.S.C., in Egbase V Oriareghan9,
The protection offered by 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 mistake10.
This goes a long way to show that the privileges of this doctrine are indeed limited in its application. Not just protecting the mistaking party, but also preventing the other party from been a victim of circumstances.
Thus NON EST FACTUM allows a party who has wrongly signed a deed to escape liability there from by asserting that the signature on the deed was not his.11
2010.
1.1.0: BACKGROUND TO THE STUDY
In most cases, most of the lay persons, who are many in Nigeria, think that whenever they sign a document, then they are bound by it even if the other party used fraud or duress to make the other party sign the document. This is in fact contrary to the fact. The fact is that one can deny or say in court that the document which he previously signed was not his deed and that he was forced to sign it or furthermore that there was a fraud that enabled him to sign the said document.
However, with a literacy rate of 63% (2005)12 estimate, and a much lesser percentage of such
Nigerians „learned? in the real sense of the word, the question therefore is how many people are really aware of their right to repudiate an „almost concluded contract?
Thus, there is a very much important need to open the eyes of Nigerians i.e. members of the public to the effect of the plea and doctrine of NON EST FACTUM, and particularly its benefits in the light of prevailing scholastic opinions, statutes and judgments (judicial pronouncements) to try and convey the true nature of this doctrine to people.
1.2.0: OBJECTIVES OF THE STUDY
The overall objective of this study is to examine the effect of a plea and/or doctrine of NON
EST FACTUM on an already “concluded” contract, using the Nigerian locus classicus on the matter (Egbase V Oriareghan13) as a case study.
Specifically, the study aims at achieving the following:
v Examine the effect of the doctrine on contracts
12MICROSOFT ENCARTA PREMIUM 2009
13 (1985), 2 N.W.L.R (PT 10) 884
encompassing of all cases.
„pipeline? one? and,
Research materials will therefore be examined and a very coordinated attempt will be made to answer these questions.
1.3.0: FOCUS OF THE STUDY
The driving force in any form of contract therefore, is to achieve a consensus which will ultimately lead to the formation of a contract which will have a backbone of steel. The question to ask at this point however is, what happens when the consensus is an issue in question?
The main focus of this study therefore will be to examine the effect of the doctrine of NON EST FACTUM on contract; a doctrine which posits that there was no consensus because documents signed were not those intended.
14 Ibid
Therefore, how will a plea of NON EST FACTUM affect a contract? Does Nigeria have a concrete plan in place or does it still lean on the old principles of common law? How well have we evolved? To what extent does equity affect our principles? And to cap it, an examination of the principles as laid down by Egbase v Oriareghan, and the effects of the aftermath of the case on the same principles today.
1.4.0: SCOPE OF THE STUDY
The scope of the law of contracts encompasses all aspects of contract; ranging from its formation to its execution and all laws in between. Such important things like offer, acceptance and the “almighty” consideration are something which cannot be avoided when talking, or as is in this case, writing about contracts. The entire terms therefore falls into the scope of this study. More importantly however is the doctrine of MISTAKE which is a precursor to the real deal of NON EST FACTUM.
However, specifically, this study will focus on areas where NON EST FACTUM is applicable, written or otherwise, with or without negligence.
More importantly, as this work aims at making use of the case of Egbase V Oriareghan, emphasis will be attempted to be placed on the Nigerian situation, and in all, an all round touch on the nitty-gritty of NON EST FACTUM itself.
1.5.0: METHODOLOGY
The method to be adopted for this study will be based on secondary sources (materials). They include both local and foreign textbooks, law journals, and available literature on the internet. The reason for this type of adaptation is to provide enough research materials to ensure a clinical approach to the project work. This will also provide an opportunity to scroll through and make use of highly scholastic opinions about the project topic.
The principle of mistake under which this topic is based is a wide area of study. Reference will be made to several foreign and Nigerian texts by distinguished authors. Various journals will also be referred to.
According to Sagay:15
Okany17 went on to say:
The plea was originally available for the benefit of blind or illiterate persons alone, but it was gradually extended to normal
and literate persons.16
. . . The mistaken party can successfully plead NON EST FACTUM (it is not my deed). The expression „deed? is not used here in a technical sense, but denotes every written document signed by the person raising the plea.18
In his own opinion, Dr. Lalitha Sreenath of T.A. Pai Management Institute, said:
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.19
Treitel in his own view20 stated,
As a general rule, a person is bound by his signature to a document whether he reads it or understands it or not. But at the end of the sixteenth century, an exception to this rule was established. If a person who could not read executed a deed after it
18Ibid P.151
19<www.mondaq.com> accessed on 18th August 2010
20 Trietel G.H. The Law Of Contract, (9TH ed Sweet & Maxwell, London , 1995)
He went further to say:
had been incorrectly read to him, he was not bound by it; he could plead NON EST FACTUM; it is not my deed.
A person who signed a document without being aware of its nature was not bound because the mind of the signer did not accompany the signature. See R. V Davies.21
The current trend is the requirement that the mistake must be fundamental. This was posited in NORWICH&PETERSBOROUGH BS V STEEDS22
Paul Dobson23 opined that NON EST FACTUM is the exception to the rule as to a mistake as to the nature of the contract itself, i.e
He went further to say:
that a person is bound by his signature on a document intended to have legal effect and cannot avoid it by claiming that he did not read the document.
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. The plea of NON EST FACTUM is not admissible if the signer acted carelessly24
M.P. FURMSTON25 said:
The origin of the rule is to be found in the mediaeval common law relating to the deeds. In the course of its development, this plea; NON EST FACTUM was made available to a defendant who could not read, whether owing to illiteracy or blindness, so as to enable him escape liability upon proof ht the written terms of the
23Paul D. Charlesworth’s Business Law (16TH ed Sweet & Maxwell, International Students’ Edition, London
1997)
24 Ibid P.
25Furmston M.P. Chesire, Fifoot & Furmston’s Law Of Contract (13TH ed Butterworths, London, 1996)
deed did not correspond with its effect as explained to him before
he put his seal to it.
In all, according to KIWI in his book26 relying on Bradley West Solicitors V Keeman27 said there are five (5) requirements for a successful plea of NON EST FACTUM:
Literature review reveals that NON EST FACTUM has a profound effect on contracts. This definite effect will be examined in the proceeding chapters
These literatures will serve as reference materials and bedrock on which this long essay will be built, specifically using them as guidelines but copiously quoting from them as the need arises.
1.7.0: CONCLUSION
The above chapter has served as an introduction for the coming chapters. It has examined the ways and methods through which the long essay is going to take. Serving as the precursor, the forth coming chapters will seek to proceed on the strength of this chapter and a paper will be made out of it.
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