Appraisal Of The Doctrine Of Non Est Factum Under The Nigerianlaw Of Contract




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. 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 ofnon est factum. 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. 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. 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. 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. 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.

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