Though all men are created equal by God, the law doesn’t view everybody as equal. They are certain categories of vulnerable persons whose special provisions have been made for them to protect their interest while entering into a contract. These are Infants, Illiterates, Drunkards, etc.
Our focus today will be on the capacity of an illiterate to enter into a contract. In law, an illiterate is someone unable to read with understanding and to express his thoughts by writing, in the language used in the document made or prepared on his behalf. See the case of Otitoju v Governor of Ondo State & Ors (1994) LPELR-SC.269/1990. With this, a professor of English may be illiterate in a contract written in German provided he doesn’t understand the language.
Since an illiterate is not be able to read, write and understand a document; such a person will need the assistance of a literate person. Hence, the need for an illiterate Jurat. An illiterate Jurat is someone who writes the document on behalf of the illiterate person. Section 3 of the Illiterate Protection Act makes provision for this and listed out the requirements that must be fulfilled by the writer. It provides; “any person who shall write 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”.
(a) 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;
(b) 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 person.
The purpose of the said provisions under Section 3 of the law is also to ensure in furtherance to the said protection of illiterate that the writer of such document is identified or traced. Implicit in that Section is that where there exists a doubt or a denial as to the correct statements that were made by the illiterate, the writer will be traced to show whether the contents of the document represent the veracity of what the illiterate asserts. In other words, the protection singularly enures only to the illiterate.
Furthermore, it is the trite principle of law that the court cannot presume illiteracy on behalf of a party. Rather, it must be established in evidence with the burden on proof being on the party who asserts it. See the cases of Ezeigwe v Awudu (2008) ALL FWLR (Pt.434) 1529. Kumo Furniture co v BOI LTD (2019) LPELR-SC 48080 (CA).
Also, the issue of capacity in the Illiterate Protection Act and laws of different states in Nigeria will arise only where the contract is in a written form. It doesn’t apply to oral contracts. This is because illiteracy does not necessarily suggest infirmity.
In conclusion, capacity to contract is one of the essential elements of a valid contract. The absence of which is fatal in a contract. In order to ensure that the illiterates are not defrauded during contractual relationships, there are several principles of law to be taken into consideration prior to the formation of a contract with an illiterate.
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