VALIDITY OF A CONTRACT BY AN ILLITERATE
A contract can be generally defined as a voluntary binding agreement between two or more people which is enforceable by law. In essence, for there to be a binding agreement, parties must have what is called in law “concensus ad idem”. Put rather nakedly, parties to the contract must not be confused as to the terms and nature of the contract. Once there are clear and unassailable facts establishing the agreement of the parties, the Court will not hesitate to enforce it.
In the law of contract, there generally elements that evinces parties’ intention to be bound by the terms and tenors of their contract. For want of time, I will simply highlight some of them. Those elements of a binding and enforceable contract are:
- There must be an OFFER;
- There must be ACCEPTANCE;
- There must be CONSIDERATION;
There must be INTENTION TO ENTER INTO LEGAL RELATIONS;
There must be CAPACITY TO CONTRACT;
- There must be ABSENCE OF VITIATING ELEMENTS.
Let is briefly consider the topic under discussion.
Who is an illiterate?
An illiterate simply put is a person who cannot read, write or understand a particular document. From the above simple definition we can deduce that an illiterate is not only he who cannot read and/ or write. A person who cannot understand the language of a particular document is also an illiterate. It follows therefore that you may be knowledgeable in English Language but may not understand French. A Professor of Law can be an illiterate. Illiteracy in this context is not an exclusive reserve of a particular group of people. Where the language of the contract requires further steps from the parties, they must comply with those requirements of the law. The reason is very simple; where they fail to comply with the relevant provisions of the law, such an illiterate person can void the contract on grounds of non est factum (which means “it is not my deed”).
We must continue to keep in mind that in Nigeria, the level of illiteracy is still very high. Consequently, a vast majority of Nigerian citizens are in need of special protection from fraud. This protection is contained in the Illiterates Protection Laws, Legal Practitioners Act, Statutes of Fraud Act 1677 and Land Instrument Preparation Laws among others.
In view of the fact that an illiterate may not be able to read, write and/or understand a document; such a person will need the assistance of a literate person. Hence illiterate persons often engage the services of literates to write their letters, memoranda and other documents as transactions will demand.
Pursuant to section 2 of the Illiterates Protection Act; any person who writes a letter or document at the request, on behalf of or in the name of an illiterate person shall also write on such document his own NAME as the writer and his ADDRESS. Such Verification Note/Statement means that the literate person was duly authorized to write the document; that what the literate wrote is a clear representation of the illiterates persons instruction and if signed by the illiterate person; that the content of the document was read out and interpreted to the illiterate person before he/she signed or made his mark on the document. Note that once a Verification Note is provided there is no need for a JURAT (a brief statement on a document stating that the content of a document was specifically read and interpreted to a person; who upon understanding same signed or made his mark on the document. It must also include the name of the interpreter and his signature).
In law, where there is a contrary evidence to show that a literate person did not write what he was instructed to write by an illiterate person, the court will jettison the Verification Note on the concerned document.In a situation, where a literate person after writing a letter or any documents for an illiterate, fails to insert a Verification Note or where he inserted such a verification Note while the contents of the letter/ document is untrue; such a literate person shall be liable to a fine of N100 and six (6) months imprisonment where in default of payment. A verification Note is a vital security measure to keep a tab on the acts of a literate person on behalf of an illiterate person to ensure discipline and sincerity.
In the same vein, a literate person may be engaged to write a document for a fee, reward or free; whatever be the case, such must be clearly stated on each copy of the letter/document written by the literate person. SECTION 6 OF THE ILLITERATES PROTECTION ACT demands that where a document is being prepared for a fee or reward, the literate person is to state the specific amount being charged or the kind/reward been taken by him. If it is for free, same should be equally stated on all copies of the letter/document. The total number of documents written including copies made must equally be stated on all the letters/documents.
Just as in every other business transaction, the Illiterates Protection Act expects a literate person to issue receipt to an illiterate person for every payment made to him for writing a letter or document for the illiterate person. See SECTION 7 OF THE ILLITERATES PROTECTION ACT.
It is an offence for a literate person not to state on each copy of a letter/document he prepared for an illiterate person his fee and the number of documents he wrote or to issue a receipt. Such a person is liable on conviction to One Hundred Naira or six (6) months imprisonment if in default of fine.
In conclusion, to avoid undue advantage against the illiterates by the literates, the law expects further steps that would build more confidence between the parties. Failure to comply with the relevant provisions of the will leave the Court with no other option than to have the contract set aside.
Written by Eze Gabriel