CAPACITY TO CONTRACT

ILLITERATE PERSON

1.0       Introduction

2.0       Objective

• Main Content
• Who is an Illiterate Person
• The Law on Illiterate Protection
• Contract made by an Illiterate Persons
• Limits to the Applicability of the Illiteracy Law

4.0       Conclusion

5.0       Summary

6.0       Tutor-Marked Assignment

7.0       References/Further Readings

 INTRODUCTION

An illiterate is like any other person who makes an oral or written contract. Where the contract is oral, his position is not different from that of any adult person. He is fully liable for all his obligations under the contract and he enjoys no privilege over the other party. Where the contract is written, whether under seal or not, special rules apply and the rules are to be found in various laws enacted for the protection of illiterate person. In addition, judicial interpretations of the scope, limits and qualifications of the statutes are of general nature. The principles, which are laid down, apply equally in all the statutes.

  OBJECTIVES

• Should understand who an illiterate person is
• Should be able to identify an illiterate person under a contract
• The position of the law on contracts entered into by illiterates

 MAIN CONTENT

• WHO IS AN ILLITERATES PERSON?

The definition is important to determine such a person is entitled to the protection of the relevant law. The judicial pronouncements have shown that there is no agreeable definition. 

Thus, in P.Z. Co. Ltd. v. Gusau (1962) 1 All NLR, p 244 and Kantoma, an illiterate is interpreted to mean ‘illiterate in the language used in the document under consideration’. Thus, in effect, this means whether the language he knows is Yoruba or Hausa or Igbo or English or French, and it is irrelevant that the person might be illiterate in other languages.

However, the Illiterates Protection Ordinance provides in section 3 to mean a person who is unable to read the document in question in the language in which it was written subject to the provision that the expression includes a person who though not totally illiterates, is not sufficiently literate to read and understand the consents to the document. This explains everything.

In Osefo v. Uwania (1971) 1 ALR Comm. 421 an illiterate person, according to Oputa J, is a person who is unable to read with understanding the document made or prepared on his behalf. Illiteracy is purely comparative. A graduate in English may well be an illiterate in German. In similar words, the Supreme Court held in SCOA Zaria v. Okon (1960) NLR 34 that although a person may be sufficiently literate to sig his name, and read figures, he may not be sufficiently literate to understand the meaning and effect of the document he is signing and in such a case, the provision of section 3 of the Illiterates Protection Act must be complied with.

In Lawal v. G B Olllvant (Nig. Limited) (1970) 2 ALR Comm. 208 CA the Western State Court of Appeal stated that the law must avoid the narrow and technical interpretation of illiterate. According to the court, the mischief aimed at by the law was to prevent a person who executes a deed from being cheated, if in fact, he did not understand the purpose of his action.

A person who can read and write in French can be cheated if he takes part in a binding agreement in English language. He is an illiterate person for the purpose of that transaction, and was therefore entitled to the protection of any law aimed at protecting illiterate persons.

 THE LAW ON ILLITERATES PROTECTION

The laws containing provisions on the protection of illiterate person in contractual agreements are:

1. Illiterates Protection Act
2. Land Instruments Registration Law. Section 3 of the Illiterates Protection Act provides;

“any person who shall writes any letter or document at the request, or on behalf or in the name of illiterate person shall also write on such letter or other document, his own name as the writer thereof and his address and his so doing shall be equivalent to statement”.

• That he was instructed to write such letter or document by the person to whom it purports to have been written and that the letter or document fully and correctly represents his instruction;
• If the letter or document purports to be signed with the signature or mark of the illiterate person that prior to its being so signed, it was read over and explained to the illiterate person and that the signature or mark was made by such Section 8 of the Land Instruments Registration Law provides:

“No instrument executed in Nigeria after the commencement of this law, the grantor or one of the grantors, whereof is illiterates, shall be registered unless it has been executed by such illiterates grantor or grantor in the presence of a magistrate or Justice of the peace and is subscribed by such a magistrate of Justice of peace as a witness thereto”.

The duty of the writer of a document, which an illiterates is involved, has been strictly enforced in courts. The writer must:

1. Also write his own name and address on the document and;
2. Ensure that it was read and explained prior to the document being signed and the signature or mark was in fact made by the illiterate

Sometimes, it may not easy to determine the writer of the document. Usually, the writer is the person in whose hand the document was written.

Thus, in PZ & Co. Ltd. v. Gusau and Kantoma (1961) NRNLR 1, see also UAC v. Edema & Ajayi (1958) NRNLR 33, the second defendant agreed to guarantee the payment of a business debt owned to the plaintiff by the first defendant. The second defendant could neither read nor write in English. He raised a defense of illiteracy and failure to comply with Illiterates Protection Act. The court had consider who the writer of the document was. Evidence showed that a typist in the plaintiff’s office typed the document and the plaintiff’s manager, who was the writer of the guarantee, filled the blank space left for the name and address of the second defendant. It was held that since the plaintiff’s manager filled in the guarantee document, the manager was the writer of the document. The Supreme Court in the above case confirmed the view.

It appears from the decision of the cases, that the writer of such a document not necessarily the person who negotiates the agreement or who types it. It is the person who enters the name and address of the illiterate person in the document. Where such a writer fails to enter his name and address’ and prepares a statement that the agreement was read over and explained to the illiterate before he put his mark on the document, such a writer cannot enforce the agreement against the illiterate person UAC v. Edema & Ajayi (1958) NRNLR 33.

 CONTRACT MADE BY ILLITERATE PERSONS

Where the contract made by an illiterate person is an oral one, his position is no different from that of any adult person. He enjoys no privilege over the other party (even if the latter is a literate person) and is fully liable for all his obligations under the contract, according to the usual principles. Where, however, the contract is in written from, whether under seal or not, then special rules apply. There are to be found in various laws enacted in Nigeria for the protection of the illiterate contractor. These laws are either general in form, i.e., laying down stipulations for all agreements involving illiterate parties, or are directed at a particular type of transaction, for example, land transactions. However, since judicial interpretation of the scope, limits and qualifications of these enactments have been general in nature, the principles laid down in these cases apply to all statutes containing provisions in respect of the illiterate contractor.

1. The Illiterates Protection Laws and the Land Instruments Registration Law: The Illiterates Protection Law Cap. 67, 1994 Laws of Lagos State. Similar enactments exist in all the other State and the Land Instruments Registration Law

Cap 56, Laws of Western Nigeria (1959) are two good illustrations of law containing provisions for the protection of illiterates in their contractual transactions.

Thus, Section 2 of the Illiterate Protection Law provides as follows:

Any person who shall write any letter or document at the  request, on behalf, or in  the  name  of  any  illiterate  person shall also write on such  letter  or  other  document his own  name as the writer thereof and his address; and his so doing shall be equivalent to a statement—

• That he was instructed such letter or document by the person for whom it purports to have writing and that the letter or document fully and correctly represents his instructions; and
• If the letter or document purports to be signed with the signature or mark of the illiterate person, the prior to its being so signed it was read over and explained to the illiterate person, and that the signature or mark was made by such Section 8 of the Land Instrument Registration Law provides that:

No instrument executed in Nigeria after the commencement of this law, the grantors, whereof is illiterate, shall be registered unless it has been executed by such illiterate grantor or grantors in the presence of a Magistrate or justice of the peace as a witness thereto. 

2. Duties of the writer under the Illiterate Protection Act

The dual duties of a writer of a document for or on behalf or at the request of an illiterate person, have been very strictly enforced the courts. The writer of such a document must:

• Also write his own name and address on the document; and
• Ensure that prior to the document being signed by the illiterate person, it was read over and explained to him, and that the signature or mark was in fact made by the illiterate

 3. MEANING OF ILLITERACY

The most important issue for the court to determine in all such case, is whether the defendant is really an illiterate person, and is thus entitled to the protection of the relevant law. The cases disclose some disagreement on this vital issue. Thus, in P.Z. & Co. Ltd. v. Gusau and Kantoma (Supra), the High court took the view that illiterate: meant illiterate in the language used in the document under consideration. It is relevant that the defendant might be illiterate in some other language.

The Illiterate Protection Ordinance does not supply any definition of the expression “illiterate person” in section 3, but I take it to mean a person who is unable to read the document in question in the language in which it was written, subject to the proviso that the expression includes a person who, though not totally illiterates, is not sufficiently literate to read and understand the contents of the document.

In some other cases, however, the courts have adopted a very technical and narrow definition of illiteracy. Thus, in its decision on appeal by the second defendant in PZ & Co. Ltd. v. Gusau and Kantoma, already referred to, the Supreme Court adopted the strict dictionary meaning of illiteracy. Relying on the Shorter Oxford English Dictionary, 3^rd edition, the court (Taylor, F.J.) defined “illiterate” as meaning: Ignorant of letters or literature; without education…..Unable to read, i.e., totally illiterate… An illiterate, unlearned or uneducated person… one unable to read.

 LIMITS TO THE APPLICABILITY OF THE “ILLITERACY” LAWS

As had already been indicated, see Anaeze v. Ayanso (1993) 5 NWLR (Pt. 291) P. 1 at 24; Agbara v. Amara (1995) 7 NWLR (Pt. 410) 712 at p. 732, the Illiterates Protection Laws are meant to protect a person illiterate in the language of a contractual document from being cheated, if in fact he did not understand the document he has signed. The laws are not meant to be used as engines of fraud. An illiterate person may not use the provisions of these laws as a means of fraudulently evading trading obligations whose implications he was fully aware of the time the bargain was struck. Thus, it is possible for a person who is technically illiterate to be denied the protection of law if it appears that he understood the purport of a bargain, even though the  other party failed to comply  fully with the provisions of the law.

In Lawal v. G.B (Nigeria) Ltd.(1970) 2 ALR, already discussed above, an illiterate person mortgaged his property to the defendants. The provision of the Land Instrument Registration Law requiring the document to be executed in the presence of a Magistrate or a Justice of the Peace was not complied with. The plaintiff asked the court to declare to the registration of the mortgage in the defendant's name null and void. The plaintiff’s excuse that he handed over his title deeds to the defendant in the belief that he (the plaintiff) was acting in the role of a witness to a sale of goods by the defendant to his (the plaintiff’s) friend, rather than as a mortgagor of his property, was patently false.

We cannot see the necessity for a witness to the signatory of a document having to surrender his own title deed of his property just for the purpose of being such a witness. Kayode Eso, J.A.

CONCLUSION

The above review of the application of the Nigerian “Illiteracy” laws in contracts, shows that although by and large the laws are being satisfactory applied, certain principles need to be re-emphasised:

• The question whether or not a person is illiterate should be related directly to the language in which the document in question is prepared. The dictionary meaning of the “illiterate” should be discarded. It is worse than unless. It is
• Any person who understands the contents of a document which he signs should not be regarded as an illiterate person under the “illiteracy” laws. These laws are meant for the protection of innocent people and should, therefore, not become weapons of fraud in the hands of delinquent
• Contracts infringing the provisions of these laws are void with respect to a writer who wants to enforce them, but are enforceable by the illiterate person and third parties. But as has been suggested above, there is no reason why the writer should not be allowed to enforce the contract where it is established that the contents of the document were indeed explained to the illiterate person, and that the writer did not knowingly and willfully fail to comply with the provisions of the relevant

 SUMMARY

By now you should be able to identify and understand what the law says about an illiterate person. The law on illiterate protection and the effect or the consequence of contract entered into by an illiterate person. Most importantly the limits t the applicability of the illiteracy laws.

TUTOR-MARKED ASSIGNMENT

1. Who is an illiterate person, according to section 3 of the Illiterate Protection
2. Outline the duties of the writer of a document under the Illiterate Protection Act, which an illiterate is involved.
3. Any limits to the applicability of the illiteracy

REFERENCES/FURTHER READINGS

OLUSEGUN YEROKUN, Modern Law of Contract, 2^nd ed., Nigerian Revenue Project Publishers (2004)

T.O DADA, General Principles of Law, 3^rd ed., T.O. Dada & Co. (2006)

I.E. SAGAY, Nigerian Law of Contract, 2^nd ed., Spectrum Law Publishing (2001)

EWAN MACINTYRE, Business Law, 1^st ed., Pearson Education Limited (2008)