Under the Ghanaian contract law, a person may plead the defense of non est factum to avoid the stipulations in a document he/she may have signed. What is NON EST FACTUM ?

Non est factum literally means this is not my deed. This is a special defence in contract law that allows a party to avoid the stipulations in a contract that he/she may have signed because of certain reasons such as mistake as to the kind of contract.

A person may plead the defence of non est factum on the following grounds:
First, where the signature of the party was procured through fraud.
The second ground is where the document was fundamentally different from that he thought he had signed.
Finally, where the party seeking to avoid liability has proved that he acted with reasonable care. In other words, if the party is able to show that he never intended to sign that particular document and therefore in contemplation of the law, he never did sign the document to which his name is appended. See : Lewis v. Clay [1897] QB 224

The general rule about signed documents is that, a party of full age and understanding is normally bound by his signature to the document, whether he read the document or not. See: Wilson v Brobbey[ 1974] 1GLR 250 and also Nkrumah v Serwaa & others[ 1984-1986] 190. In certain circumstances, however, a party who has been misled into executing a deed or signing a document of a class and character different from that which he intended to execute or sign can escape liability on the signed document by pleading the defence of non est factum in an action brought against him for the enforcement of the document.see Lewis v Clay(supra).

This means that a person cannot sign a document and later say that he did not sign or he did not intend to sign, the onus of prove lies on the party pleading the non est factum. See: Quao v Squire[1978]1GLR 270.

In terms of illiterate and written contracts, the position of the law in Ghana is that, the law places an obligation on the literate party to the contract to explain the contents of the contract to the illiterate party such that if the literate party does not discharge his good faith duty, by explaining the contents of the contract to the illiterate party, the contract is void. See: Atta Kwamin v. Kuffour(1914) 2 Renner’s Reports 808 S.C (privy council).
Again, there must be an inclusion of JURAT CLAUSE-interpretation clause: this is a certificate signed by the person who read, explained and secured the illiterate’s understanding before signing. See: Maxwell Opoku Agyemang, The law of Evidence in Ghana, page 608.

The supreme court emphasized the importance of the jurat clause in the case of Re Kodie stool: Adowaa v Osei [1998-99] SCGLR 23.

In conclusion, the signed rule is that in the absence of fraud or misrepresentation, where a document containing contractual terms is signed, the party signing is bound by their signature. Not reading the document in whole or part is immaterial. See: L’ Estrange v F. Graucob [1934] 2 KB 394.
It is important that a person reads a document, understands it before he/she signs it, if the person does not take the trouble to reading a document before signing he/she will be liable to the innocent holder. See; Lord Dennings opinion in the case of Saunders v Anglia Building Society(Gallie v Lee) [1971] AC 1004.

By Maxwell Addae-Kusi.

An occupier is a person who exercises an element of control over premises. See: Wheat v. E. Lacon & Co Ltd [1966] AC 552 HL

There are three categories of visitors, they are (1) Those with express permission . (2) Those with implied permission (3) Those with right to enter.

Occupiers have an obligation to ensure that their premises is not hazardous to others. This obligation is governed by statute law as the occupiers liability act, 1957, which is supplemented by the occupiers liability act, 1984 which covers injuries caused to trespassers.

Section 1(1) of the Occupiers liability act, 1957 stipulates that the purpose of the act is to regulate the duty which an occupier of premises(land, car, aeroplane etc) owes to his visitors in respect of dangers due to the state of the premises or things done or omitted to be done on them.

Position of the law on visitors with implied permission is that ”lIf an occupier knows that his land is used by trespassers but does nothing to prevent them from entering his land, this may amount to implied permission to enter.

See: Lowry v Walker [1911] AC 10 HL

Comment: what this holdings of the court means is that, as an occupier you owe a duty to a visitor or trespasser to ensure that your premises is safe for them, because if anything happens to them you will be liable, whether you gave them permission to enter or not is immaterial, so far as you’ve acquiesced.

By Maxwell Addae-Kusi

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