CONCEPT OF NON EST FACTUM

• Date: 24 January 2019

"The concept of nonest factum no doubt has found its way into our law from the common law mother country and its development in that country has had a great influence on our own concept of the law. The law is certain that apart from the absence of valuable consideration, a person is not precluded by the fact that his act in pais is evidenced by deed from averring any ground of avoidance of that act, which he might have asserted if the act had been accomplished by words of mouth or unsealed writing. He is entitled to aver and prove by extrinsic evidence (as has been attempted in this instance case) that he has not given such true, full and free consent to the transaction expressed therein as will render it unimpeachable. The plea of nonest factum or nient son fait is only available where the party sued or suing can show either that there never has been or that there is not existing at the time of the plea any valid execution of the deed on his part. (See Nichols v. Haywood (1545) 1 Dyer 59a; Whelpdab’s case (1604) 5 Co. Rep. 119a at 119b; 77 English Reports 241; Pigot’s case (1914) Co. Rep 26). A person raising the plea of non est factum on the ground of mistake as to contents must have taken such precautions as he reasonably could, and must prove that he took reasonable care as well as proving all the other circumstances necessary to found the relief. The mistake must have been induced by a misrepresentation made whether by words or conduct, by some person, other than the executing party raising the plea; the other person need not be a party himself but a self-induced mistake is insufficient. The plea is not available to a person whose mistake was really a mistake as to the legal effect of the document, whether that was his own mistake or that of his adviser: - (Saunders v. Anglia Building Society (1971) A.C. 1004 at 1016 per Lord Reid. Powell v. Smith 1872 LR 14 Eq. 85; Tamplin v. James (1880) 15 Ch. D. 215 C.A; Steward v. Kennedy (No. 2) (1890) 15 App Cas 108 HL On the authorities, the plea of the plaintiff/appellant that he could not and did not appreciate the contents of the deed, in our opinion, cannot be of any assistance to him. His evidence that he did not read the deed before he signed it because of the assurance given by the respondent (if the evidence had been accepted) would not and could not have availed him either. In the case of Saunders (Executrix of the Estate of Rose Maud Gallic Deceased) v. Anglia Building Society ...