THE PRINCIPLE OF NON EST FACTUM AND ITS APPLICATION TO

CONTRACTUAL OBLIGATIONS IN BOTH ENGLISH AND NIGERIAN LAW.

- Samuel Chukwuemeka Korie.1

ABSTRACT
Entering into contracts is an everyday phenomenon, persons benefit from the resources of
each other by voluntarily entering into quid pro quo agreements on a daily basis. Even in
instances where these transactions are not acknowledged, they exist and are regulated by
the general laws of contract, trade, usage and common sense.
The entire jurisprudence regarding the origin of the law to my mind is to protect society’s
“weakest link”. In the law of contracts, it will be the illiterates and parties who sign
agreements without necessarily casting their minds on the nature, purports and contents of
the contract they append their endorsements upon.
This essay using the lynchpin of Nigerian legal jurisprudence and its English counterpart
seeks to answer the salient questions relating to the value of signatures of illiterates on
documents, the general principle of non est factum, the positions of the law in the
aforementioned jurisdictions vis-à-vis the applicable positions today.

Keywords: Contract, trade, usage, jurisprudence, illiterates, parties, endorsement, non est
factum.

INTRODUCTION
In order to gain a thorough understanding of this discourse, I’d like us to quickly rationalise
this hypothetical scenario. A is a middle aged, single mother of 2, living on the stipend
provided by the government for those with her peculiar disabilities (Blindness) and rents
from a small piece of land. On the 14th of March 2016, she conducts her affairs as she
normally would. On waking up the following day, she is greeted with a subpoena in braille
asking her to produce the deed to her land. On getting to the court for the determination
of the case which is quite glaring she knows nothing about, or might be a case of a mistaken
address with her name on it, she finds that her tenant who asked A to append her signature
for an agricultural loan for him had in fact, transferred the title to the land and A by virtue
of the signature, effectively forwent a 7 month arrears in rent, all for a meagre consideration
of 100 naira which in the tenants words were given to A “for all her troubles”. Would it
be in the interest of justice to enforce this contract which to the eyes of a reasonable man
contained all the essentials for a valid contract, even consideration?

1
Samuel Korie is an intern at Banwo & Ighodalo and a final year student of the Faculty of Law, Obafemi
Awolowo University. He is passionate about negotiation, volunteering and the unchartered frontiers of the
legal profession.
Email: koriehkorieh@icloud.com Phone: +2348144611835

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A contract is an agreement between two or more parties creating or vesting legally enforceable
obligations upon them, the default of which would in more cases than none have certain
consequences.2 A contract enforceable by law is one devoid of a vitiating element viz Fraud,
Duress or Undue Influence, Misrepresentation, Mistake. A contract is the melting point of 4
elements, Offer, Acceptance, and Consideration also an Intention to Create/Enter Legal
Relations must be imputed. The guiding principle of the first 2 elements is a Consensus Ad
Idem which means a Meeting of Minds; the basis of Consideration also is Reciprocity.
When a contract lacks any of the aforementioned, it is unenforceable. If any of the vitiating
elements can be proved, it is depending on the injured party at times Void or Voidable.

At this point is necessary to call to mind that of the vitiating elements the one most relevant
to the topic in consideration is Mistake, specifically relating to Documents Mistakenly
Signed.3 The most basic rule of contracts is that a person is bound by a document signed by
them, whether he read it or not (exclusion clauses inclusive) in the absence of any of the
vitiating elements. This has been given judicial recognition time and time again.4 Where a
person is induced to sign a document by Fraud, like our hypothetical case above, he is
entitled to a plea of Praeditum Scriptum Non Est Factum which literally translates to “that
which is claimed I wrote, is not my deed” or “it is not my deed”. If the plea succeeds, the
contract becomes invalid and the obligations created by it become nugatory. The legal
grounds for this is the importance of a Consensus Ad Idem between the two “contracting”
parties. Justice Byles, in Foster v Makinnon,5 had the best words to sum the entirety of
this paragraph:
“…the mind of the signer did not accompany the signature; in other words, that he
never intended to sign, and therefore in the contemplation of the law never did sign
the contract to which his name is appended.”

BRIEF HISTORY OF THE DOCTRINE

This plea is concerned with the need to protect a class of disadvantaged parties (Illiterates)
in Contract Law, and with the problems faced by that class of persons in the formation of
contracts. Should such a person be bound by a contract if he did not know that he was in
fact contracting when he signed? These class of persons are protected by law. This
protection is ostensibly against the most basic rule of contracts, that is, that they are binding
on parties to them.

This protection is vital because such disadvantaged persons e.g. illiterates, constitute a great
percentage of the population in Nigeria. They should not be relegated to the background. In
2
Enemchukwu v Okoye & Anor (2016) LPELR-40027(CA)
3
As tagged by Professor Itse E. Sagay in Nigerian Law of Contract, 2 nd Edition pp.277
4
George C. v Adebayo 3 U.I.L.R 532; L’Estrange v Groucob (1934) 2 K.B 394; the dictum of Karibi- Whyte,
JSC in Sylvester Egbase v Augustine Oriareghan (1985) 2 NWLR (pt. 10) 884.
5
(1869) L.R 4 c.p 704

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order to avoid total relegation in contract, Illiterates are protected by the plea of Non Est
Factum which is an extenuating factor under the Illiterates Protection Law.6 Originally
however, as far back as 1313, the plea was available for the benefit of blind or illiterate
persons alone especially in the plea of evidence

It was gradually extended to normal and literate persons however. This is because in the
19th Century, these cases were rationalized by saying that the alleged contract was void
because the mind of the signer did not accompany the signature. The first and most
resounding exposition of the former state of things is seen in Thoroughgood v Cole,7 the
facts of the case in detail goes thus:
William Chicken, being in arrears with his rent, tendered to his landlord, a deed by
which he was relieved from all demands whatsoever comprised not only in the arrears
of rent but also the right to recover the land. Thoroughgood was illiterate, but a bystander
affecting to be helpful seized the deed and said: 'The effect of it is this, that you do release
to William Chicken all the arrears of rent that he doth owe you and no otherwise, and
thus, you shall have your land back again'. After replying, ‘if it be no otherwise, I am
content', Thorough good sealed the deed. Chicken subsequently sold the land to an
innocent purchaser. Thorough good sued to recover his land. The plea, as the language
showed, was confined to cases where the defendant was sued on a deed, and at a time
when illiteracy was frequent enough to demand special protection, it was unexceptionable.
It was held that the deed was void. He never intended to make that contract
It might have been wiser, therefore, to discard it altogether when society became
more sophisticated but in the course of the Nineteenth Century the courts
extended it with little reflection and without warrant to cases of simple contracts and
abandoned the requirement of illiteracy. The justification for these extensions was now said
to be want of consent.
Though this plea arose in the 'British world' at the age, illiteracy is on a steady decline
almost to the point of nullity in Britain, however in Nigeria with an over 50% illiteracy level,8
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”, it has a great level of relevancy and currency 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

6
Cap 67 Laws of Lagos State. There are a Corpus of Legislation on the same matter. They are:
The Illiterates Protection Act. Cap 83. Laws of the Federation of Nigeria (1958);
The Illiterates Protection Law Cap 64 Eastern Nigeria (1920);
The Illiterates Protection Law Cap 51 Northern Nigeria;
The Illiterates Protection law Cap 47 Western Nigeria;
The Illiterates Protection Law Cap 70 Bendel State (Edo & Delta States)
7
(1582) 2 Co Rep 9a. The earliest reported case on Non Est Factum
8
https://www.vanguardngr.com/2015/12/65-million-nigerians-are-illiterates-unesco/

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that he was forced to sign it or furthermore that there was a fraud that enabled him to sign
the said document.

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.

For the purpose of emphasis, the doctrine/plea of Non Est Factum is much older than this
case i.e. Thoroughgood’s case. The doctrine started life as a device for the protection of
illiterates and blind contractors. In modern times, however, it has been modified and
adapted for the protection of a person, who in the absence of negligence on its part, has
been fraudulently induced to sign a document radically different from that which he was
made to believe he was signing.

Thus the plea of Non Est Factum is not available to a party who knew what he was signing at
the time he signed it. However, where a man’s mind does not accompany the act of signing
it can be said that there is no consent. A number of legal minds have emphasized the need
to keep the doctrine within narrow confines. In Mushkham Finance Limited v.
Howard9 the court held that” the plea must necessarily be kept within narrow limits
because much uncertainty would result in the field of contract and elsewhere if a man were
permitted to try to disown his signature simply by asserting that he did not understand that
which he signed.10 In circumscribing the scope of the doctrine, there are a class of persons
to whom the plea is available. The application of the doctrine to persons who can read in
the 19th Century has been qualified by the fact that it should not apply to persons of full age
and capacity. But this very narrow view of the doctrine was rejected by the House of Lords
in Gallie v. Lee. In the words of Lord Reid it may apply to:
“Those who are permanently or temporarily unable, through no fault of their own,
to have without explanation any real understanding of the purport of a particular
document whether that be from defective education, illness or innate incapacity”

The doctrine may thus apply not only to the blind and illiterate but also to persons who are
senile, of very low intelligence or unable to read English.11 But it will not normally protect
literate persons of full capacity. The consequence is that there is no such estoppel in the
case of ordinary signed documents, and a party of full age and understanding is normally
bound by his signature to a document, whether he reads or understands it or not.12 If,

9
(1963) 1 QB 904.
10
per Lord Donovan in the aforementioned case
11
Sylvester D.E. Egbase v. Augustine O. Oriareghan (1985) 2 NWLR 884
12
Okotie- Eboh v Barclays Bank of Nigeria

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however, a party has been misled into executing a deed or signing a document essentially
different from that which he intended to execute or sign, he can plead Non Est Factum in an
action against him.

FOSTER v MACKINNON and subsequent developments from it

Having firmly established the definition and history of the doctrine of Non Est Factum, it is of
great necessity to determine the qualification for its application- their evolution if need be.
The first qualification for the person making the plea of Non Est Factum is that, the document
he signed must be 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. This was clearly established in
Foster v Mackinnon13
In the above case, the defendant, a man advanced in age was fraudulently induced to
endorse a bill of exchange for 3000pounds on assurance that the document was a guarantee
of a similar nature he had executed previously. Later the bill was endorsed for value to
foster who took it in good faith. The endorsee foster subsequently brought a 3000 pound
action against the defendant. The court laid down the principle for admission of the claim of
Non Est Factum thus:
it seems plain on principle and on authority, that if a blind man or a man who cannot
read or who for some reasons (not implying negligence) forbears to read, has a
written contract falsely read over to him, the reader misreading to such a degree
that the written contract is of such a nature altogether different from the contract
pretended to be read from the paper which the blind or illiterate man afterwards
sign; then at least if there be no negligence, the signature so obtained is of no force.

In the instant case, Mackinnon intended to sign a contract of essentially a different nature,
and he was not guilty of negligence and not liable for the 3000 pound bill.

On the other pole is Howatson v. Webb,14 where the defendant was fraudulently induced
by one Hooper to execute a mortgage relating to certain property. The defendant executed
the mortgage without reading the deed; he however knew that it disposed in some way of
the land in question but was induced to believe that it was a conveyance rather than a
mortgage. The defendant’s plea of Non Est Factum did not succeed as the deed in question
was not of a wholly different class and character from that which the defendant believed it
to be. It purported to be a transfer of property, and the defendant was merely mistaken as
to its contents. Howatson v. Webb introduced a new concept into the nature of mistake
viz- content and character of the deed. The courts gave effect to this policy by delineating
the boundaries between the “character” of a document and its “contents.”

In the above case the defendant intended to transfer the property, which was of the same
class and character as the document he executed. His intended mode of transfer was of
variance i.e. he wanted an outright transfer not by mortgage which was merely a difference
in content.
13
(1869) L.R 4 C.p 704
14
(1907) 1 Ch. D.I

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An exposition of Nigerian cases on this point of law shows that Nigerian Judges are most
times content with following almost dogmatically an existing rule rather than 'flow' with the
trend. In Oluwo and another V Adewale15 where a deed of legal mortgage with an
equity of redemption was intended, but in fact, a deed of legal transfer without such option
of equity was executed, the Court held as follows:
. . . had intended to transfer the legal mortgage in the property to the defendant by
way of legal mortgage with an equity of redemption in himself. The deed did transfer
the legal estate in the property to the defendant but without an equity of
redemption. It created an absolute transfer. In our view, Non Est Factum does not
avail the appellants.

The facts of the above case are follow that, the appellant intended to transfer the legal
estate in the property to the defendant by way of a legal mortgage with an equity of
redemption in himself. The deed did transfer the legal estate in the property to the
defendant but without an equity of redemption. It created an absolute transfer. It was HELD
that the plea of Non Est Factum does not avail the appellants. The contract is not void ab
initio but voidable. The appellant was therefore entitled to have the deed set aside provided
the circumstances are such that the parties can be restored as far as possible to their
former position.

Going forward, we can observe that there has been a shift in the position of the law as
regards the qualification for the plea of Non Est Factum to avail a defendant. The current
position is hinged on the dictum of Lord Denning’s criticism of the test of Character against
Content of the signed document, Gallie v Lee16 as a mistake relating to content may be no
less radical than one relating to the character of the contract. His views are thus:
The distinction between character and content would mean for instance that the
plea of Non Est Factum will not avail any man who signs a bill of exchange for 10,999
pounds having been told that it is for 100 pounds since he fully appreciates the
character of the document. Why should the result be different if he believes the
document to be a bill of exchange for 1000 pounds though in truth, it is a guarantee
for the same sum?

Barely 3 years later, had this same reasoning received judicial flavour in Saunders v Anglia
Building Society.17 An application of this more modern principle would have produced
more manifestly equitable results in favour of the defendants in a few of the aforementioned
cases, particularly in Oluwo’s case.

15
(1964) NMLR 17 SC
16
(1969) 2 Ch. 31-32.
17
(1971) A.C 1004 at pp. 1017, 1034-1035.

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It is quite negatively elating that the Nigerian Supreme Court seemed quite unaware of the
headway already made in the application of the principle in the decision of Awosile v
Sotunbo18, nearly 21 years after the establishment of the principle that “a plea of Non Est
Factum will avail a defendant who has signed something RADICALLY DIFFERENT from
what he has intended to sign.”
The appellant had borrowed a small amount of money from the respondent in 1963. By
1965, the loan had not yet been paid back, the appellant gave the respondent the authority
to collect rents on two houses built by him on the same plot of land. In 1963, the
respondent asked him to execute a document conveying the houses and land to him. This
was executed before a magistrate. A few years later, the appellant demanded the
respondent reconvened the landed property to him. This was refused by the respondent
who had built 5 other properties on the land. In court the appellant argued that he had only
borrowed money from the responded and not sold his property to him, that it would have
been unreasonable to sell his property for just 4,800 naira only. This was because the plaintiff
thought he was executing a security for a loan which the defendant gave to him, not knowing that it
was a deed of conveyance of his landed property. WALl JSC held that:

In Nigeria, the court should not absolutely adhere to the extension of this doctrine
by the modern cases where enlightenment and education is at its peak. A wealthy
person is not necessarily enlightened or educated. In Nigeria, majority of the people
involved in land matters as in this case are illiterates... for the plea to succeed, the
burden is on the plaintiff, he has to prove that he did not sign the document; he has
to prove that there is a radical difference between what he signed and what he
thought he was signing. What amounts to radical difference must be in particular that
which goes to the substance of the whole consideration or the root of the matter.

It has been posited by I. E. Sagay that:

The right decision was reached (at all levels of the court system by dismissing the
case) from the available evidence, but it was arrived at for the wrong reasons. The
deed was signed before a Magistrate who signed as a witness, and the appropriate
jurat indicating that the contents of the document had been interpreted and
explained to the appellant was added. He could, therefore, not plead the fraud, or
misrepresentation associated with an act which gives rise to a plea of Non Est Factum.

He further added that, there existed no doubt that the outright sale of his property was
RADICALLY and FUNDAMENTALLY different from his intent to use them as security for
the 4,800 naira loan. If he could establish justifiable ignorance on his part, and
misrepresentation on the part of the respondent, he claim ought to have succeeded.

However, the decision in Barclays Bank of Nigeria Ltd V Okotie-Eboh19 shows a

substantiated improvement. Here, the defendants, all directors of a company had signed a
document guaranteeing the repayment of a loan made to the company by the plaintiff bank.

18
(1992) 5 NWLR (pt. 243) 514.
19
unreported (1971)

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The first defendant denied any liability by relying on Non Est Factum, saying that she did not
know that it was a guarantee for obtaining money.
The court held that she was literate enough to know the meaning of the word guarantee.
Moreover, the document was not of such a fundamental difference from what she thought it
was, to make the plea available to her. In effect therefore, if a party appreciated the
character and nature of the contract that he signed, he could not escape liability merely
because he was mistaken as to its details or its contents. Taylor, C.J held that “the
document was not therefore of such a fundamental difference from what she thought it was,
to make this plea available to her.” Besides she was “sufficiently literate to have a general
idea of the meaning of the word ‘guarantee’ in bold print” in the document.

NEGLIGENCE
Now the questions crop up, would it be proper for a defendant who paid little or zero
attention to the document he was executing or signing to succeed in the claim for Non Est
Factum? Would it also be fitting for a defendant, who relies on the trust reposed in the
person giving him the document to sign, to fail in a plea of Non Est Factum?20 Would it be in
the interest of justice to allow a careless or reckless defendant to retract his deed, simply
because he didn’t pay due attention to the contents of the document? 21

Inasmuch as would be in the interest of justice to allow the second scenario, it isn’t radically
different from others, in the sense that it was still the overriding term called “negligence”
that was prevalent in all the cases.

Prior to this well-established position of the law, the proper scope and effect of negligence
on a plea of Non Est Factum was thrown into uncertainty for a long time as a result of the
Court of Appeal decision in Carlisle & Cumberland Banking Co., V Bragg22
In that case, the defendant was requested by one Rigg to sign a document, representing to
him that it concerned an insurance matter on which they had been doing business together.
Bragg signed without reading it. This turned to be a misrepresentation as the document was
a continuous guarantee of Rigg’s current account with the defendant bank. When sued to
enforce the guarantee, Bragg denied liability and relied on Non Est Factum. The Court held
that Bragg's negligence was immaterial as he owed no duty of care to the bank. Moreover,
the immediate cause of the bank's loss was not Bragg's negligence, stating further that the
document involved in that case was a negotiable instrument and the rule laid down that a
person guilty of negligence cannot plead Non Est Factum was limited to the cases involving
negotiable instruments.
This decision has been much criticized, and according to a learned writer:
If it was a negotiable instrument that the party charged was fraudulently induced to
sign then he will be liable if negligent; but if it turns out to be some other
transaction, he will not incur any liability. Since he is ignorant of its true nature in

20
Carlisle & Cumberland Banking Co., V Bragg (although wrongly decided)
21
M.A.E. Aro V Shittu Kadiri
22
(1911) I KB 489

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 either case, the question of liability or no liability depends upon the operation of
chance, or at any rate upon the choice of the fraudulent party23.

The decision of the Court of Appeal in Bragg's case has been overruled by the House of
Lords in Saunders V Anglia Building Society24. It was held that negligence is material in
all cases of Non Est Factum and not only to cases involving negotiable instruments.
Establishing duty of care like to prove negligence like in torts is unnecessary as the word
negligence in this connection has no special technical meaning, it meant carelessness25.

This is the final condition presented in Foster v Mackinnon, this condition hasn’t
experienced much of the change that has occasioned the previous qualification of Class,
Content and Character. Negligence or an “evidence of negligence” is fatal to the plea of
Non Est Factum of the person who signed the document.

As reiterated by the decision in Saunders V Anglia Building Society26, the plea of Non
Est Factum can only succeed if the person raising it showed that he or she was not careless
in signing the document. The word negligence as described by the Oxford English Mini
Dictionary27 Means 'lack of proper care or attention'. In legal parlance however, it means more
than that. It is a breach of a legal duty to take care.

A person will be guilty of negligence where he does not intend the natural consequences of
his actions and does not act to produce them but nevertheless, careless whether they
happen or not and therefore does not refrain the act notwithstanding the risk that they may
happen28. To succeed in a negligence action; duty, breach, causation and damage are the
elements which together make any successful claim29.

Though the explanations as given above aptly relates to the world of torts, in a claim of Non
Est Factum, it is also a sine qua non30. Thus, where a party to a contract, though not intending
to sign a contract to say bequest the title in a land to an individual but rather to provide a
loan; but however did not take the legal duty to take care by reading the purported
document, he will be guilty of negligence and even though he owed the duty to take care, he
will still be guilty nonetheless3132.

23
Guest A.G. Anson’s English Law of Contract ( 22nd ed. Butterworths, London, 1995) P.286
24
(1971) AC 1004 at1026
25
Ibid
26
(1971) A.C. 1004
27
(Oxford University Press, United States, 2003)
28
Grill v. General Iron Screw Collier Co. (1860) LR 1 CP 600
29
Lochelly Iron & Co. v. N’Mullen (1934) AC 1
30
Literally means’without which not’
31
Gallie v lee (1967) 2 Ch. 17

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The standard of care in a Non Est Factum case seems to be a subjective one, depending on
actual capacities of the signer, but even an elderly widow of moderate educational
attainments should not sign a document transferring her house without at least making sure
that the transfer is in favour of the right person.

The decision of the court in the case of M.A.E. Aro V Shittu Kadiri33 shows that
although the question of carelessness is one heavily reliant on the facts in each case, it
seems that there will be few cases in which a person will now be able to show that he was
not careless in signing the document. The burden of disproving carelessness lies on the
signer and is a heavy one. In actual fact, evidence of negligence on the part of the person
signing the document is fatal to his plea. This point is well established in this Nigerian case,
where the court held that, apart from the story of the defendant being highly implausible,
even if his account of events were true, his plea of Non Est Factum would have still failed.
Since he did not take the trouble to read the document placed before him by Williams.
Quoting Gallie v Lee34 Dosunmu, J restated:
By his conduct in signing it (the document) he has represented, to all those whose
hands it may come, that it is his document, and once they act on it being his
document, he cannot go back on it and say it is a nullity from the beginning

In Awosile V Sotunbo35, it was held that a complaint by a person of full age, sense,
knowledge and discretion, that at the time he signed the document, he did not know the
contents, without proving fraud will not avail him a plea of Non Est Factum to avoid the
validity and legal effect of such a document. Where fraud can however be proved, the plea
will definitely affect such a person.

THE NIGERIAN SITUATION: Sylvester Egbase v Augustine Oriareghan36

With regards to the Nigerian situation, it is noteworthy that the Egbase-Oriareghan decision
was not the first pivotal decision but has only been given high regards for it gave perhaps the
most comprehensive exposition of the doctrine- the like of which can only be emulated
subsequently. Before a due consideration of the merits of that case is made, I’d like to
quickly make a detour to expatiate a principle.

Only the signer of a document, or his legal successors or assignees can plead Non Est Factum
with respect to the contents of such a document. This might appear insignificant, trivial or
infinitesimal but litigants have been known to raise the plea in respect to a document signed

32
An Outline of the Law of Contracts P.207
33
(unreported) High Court of Lagos State, Suit No LD/650/71
34
(1967) 2 Ch. 17
35
[1992] 5 NWLR (pt. 243) P. 514
36
(1985) 2 NWLR (Pt. 10) 884

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by another party, who isn’t complaining about the document itself. In Ajaka v Ibru37. The
plaintiff (claiming to represent the community youths) brought a claim requesting the court
to set aside the grant of community land to the defendant made by 14 elders. The court
held that since the plaintiff wasn’t among the 14 elders, a plea of Non Est Factum cannot be
sustained.
The facts of the topical case38 go thus: The respondent who was desperately in need of
money approached the appellant for loan. The appellant agreed to give him the loan, and
approached a solicitor to draw up the agreement. Respondent was asked by the appellant
whether he (respondent) had a house. He replied that he had a fifteen-room house. In the
agreement which was drawn up by the solicitor, it was stated that the appellant described
therein as "the purchaser" had agreed to 'acquire' the respondent's house in fee simple for
N500, which was the sum of loan he requested by the respondent. The respondent himself
was described as 'the vendor' in the document. The agreement reserved the right of the
vendor to repurchase the property back from the purchaser for the said sum on or before,
but not later than six months from the date of signing of the contract. The effect of this
document, therefore, was that there was a conditional sale of the house by the respondent
to the appellant, the condition being that the house could be repurchased by the respondent
within six months for N500.

The contents of the document were explained to the respondent who accepted them and
signed. When after six months, the respondent failed to pay the N500, both parties agreed
that the property was now owned by the appellant unconditionally. It was, however, agreed
that the respondent could continue to live on the property as the tenant of the appellant for
a rent of N 15 a month. The respondent paid for three months and defaulted further
payment. When the appellant brought an action to eject them and obtain possession of the
premises, the respondent alleged that he had entered into the sale transaction under an
error. He thought he had intended to enter an, agreement of loan under which the house
would be used as security- not an agreement for sale. He pleaded that he was an illiterate
person and therefore, he did not appreciate that he was selling the house for N500. He
relied on Non Est Factum.

He however admitted under cross examination that before he signed the agreement, it was
read and interpreted by his solicitors who also testified as the first defence witnesses. He
also admitted that before he signed the agreement, he understood that the house would
become the property of the appellant if he failed to pay the loan within six months of
obtaining same. On the totality of the evidence adduced at the trial, the trial judge accepted
the testimony of the appellant, the solicitor and that of a third person, who acted as middle
man between the appellant and the respondent. He held that the defence of Non Est Factum
did not avail the respondent. The Court of Appeal reversed the decision which led to a
further appeal to the Supreme Court.

37
(1976) 6 U.I.L.R pt 194
38
(1985) 2 NWLR (Pt. 10) 884; Sylvester Egbase v Augustine Oriareghan.

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The Supreme Court allowed the appeal mainly on the ground that since the evidence clearly
established that the agreement was read and interpreted to the respondent, who
understood and accepted the terms; there could be no room for his plea of Non Est Factum.
Karibi-Whyte JSC went on to say,
... It was the document he signed and intended to sign with full awareness and
without any negligence on his part. It should be stated that in any case,
negligence is fatal to any plea of Non Est Factum39?

This case encompasses the entirety of the doctrine of Non Est Factum, whether in ratio or as
obiter. The rule of negligence as mentioned by Karibi- Whyte JSC above, as regards the
character/ content; viz-a-viz the radically/ fundamental difference, Eso JSC in his view said:
…the use of the terms 'vendor' and 'purchaser' clearly indicated that a sale of the
house was intended and the difference was therefore one of contents only and not
one affecting the nature of the transaction. ... But it should be noted that the
terminology of content versus nature or character has now been abandoned entirely.
The modern and appropriate terms are whether the agreement signed is radically
and fundamentally different from the one intended.40

A learned writer, I. E. Sagay41 has observed and subsequently opined that in any case, either
test would have led to the same conclusion namely, that the respondent was not entitled to
plead Non Est Factum.
On the question of consent, which is fundamental to any plea of Non Est Factum, Karibi-
Whyte JSC said:
Since the basis of the plea of Non Est Factum is consent, it would seem incontestable
that where the document sought to be repudiated contains matters fundamentally
different from what the parties agreed, there is no consensus ad idem and it is not
the deed agreed upon. In this case there is no doubt that Exhibit B reflected the
agreement of the parties; and the respondent knew that Exhibit B did not contain
terms different from the agreements of the parties...,42

Furthermore, on the question of Non Est Factum and illiterates, he said:

The protection offered by the law is to ensure that a person is not bound by the
terms of a document which he should not have signed but signed due to fraud or
mistake. The principle dominates the Illiterates Protection Legislation which requires
interpretation signed by an illiterate.43

39
Ibid at P.994
40
Ibid at P. 1005
41
Nigerian Law of Contracts P.289
42
Ibid at P.1010
43
Ibid at P. 1009

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From the above dicta, it is not surprising that various cases as decided recently aptly follow
the laid down rules.

As concerns the protection of illiterates in a plea of Non Est Factum vis-a-vis the Illiterate
Protection Act44, the Court has agreed in Gbode Ventures Nig. Ltd. & Ors. V Alhaja
Barakat Lafia & Ors, 45that the existence of Illiterate Protection Act (Law) is primarily to
protect the illiterate. On the point of fraud, in Universal Trust Bank Ltd., V
Dolmetsch Pharmacy Nig. Ltd.,46 it was said in definition that 'the plea of Non Est
Factum... is a well-known defence at Common Law, which allows a person to say that a deed
bearing his signature is not, in fact, executed by him because his signature on it was obtained
by duress, undue influence, intimidation etc. This issue was also examined in the cases of
Moses Ezuhu Akwafuo V Desmond Anyanwu47 and Chief Adewale Atanda V
Beauty Fair Laboratory Ltd.
Thus, it is clear that the principle of Non Est Factum as enshrined by Egbase v Oriareghan has
a far reaching effect on the doctrine in Nigeria and subsequent decisions, even highly
profound dicta regard this as our very own Nigerian locus Classicus on Non Est Factum.

CONCLUSION

It is submitted that the principle of Non Est Factum as introduced into Nigeria via reception
of English common law rules, is a worthwhile addition and qualification for contractual
obligations in Nigeria. This is in part due to the general trend of illiteracy amongst Nigerians,
so as to protect the nearly 70% of the population who aren’t learned from unconscionable
contractual bargains which would have been otherwise binding on them. This is the reason
why certain sections of the Illiterate Protection Act were cited copiously.

Similar to the landmark decision of the earlier examined Foster v Makinnon decision in
English law, Nigeria contract law previously experienced a drought of good quality decisions
regarding the principle of Non Est Factum, this changed after the judgement in Sylvester
Egbase v Augustine Oriareghan which represents the face of contemporary Nigerian
law on documents mistakenly signed (Non Est Factum). It is in my own humble view that this
singular decision that will become binding on the lower courts in the judicial hierarchy48, has
indeed served the purpose of justice because defendants, who are not negligent whilst
signing something that is radically different from what was contemplated, will successfully be
availed by a plea of Non Est Factum.

44
Illiterate Protection Act 1918
45
(2004) CA 297
46
(2007) 6 NILR 83
47
CA/PH/123 (1997)
48
By the doctrine of Judicial Precedent

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