THE FATE OF ILLITERATES IN WRITTEN AGREEMENTS IN NIGERIA ( CONTINUATION)

Today's post is a follow up on the post of yesterday, 20th May, 2015. Read that post for a recap.The legal poser from that post is whose argument would be upheld by the court between the illiterate guarantor and the bank ( the creditor) in that post?

THE LEGAL POSITION
The law applicable to the scenario at hand is the Illiterate Protection Act, 1920. There are laws with similar provisions in the states of the federation of the Federal Republic of Nigeria.Section 3 of this Act provides for the duties of the author of a document for or on behalf of or at the instance of an illiterate.It is provided that the writer of such document must, in addition to the particulars of parties to the document including an illiterate, write his own name and address on the document and he must ensure that, before the document is signed by the illiterate, it is read over and explained to him and that he understands the contents of the document.He must also ensure that the portion of the document to be executed by the illiterate is actually thumb imprinted or signed by him and not by any other person purporting to sign on his behalf.

In the scenario, although I did not indicate who authored the guarantee bond allegedly signed by the illiterate guarantor, let us now assume the bond was prepared by the typist that typed it.This is because if nobody had franked the document as the a maker of it, then it would be right in law to say it was prepared by whoever typed it.If that was the case, the requirement of section 3 of the Act is that the typist must have written his name and address in the bond in addition to the particulars of the creditor and the guarantor. The typist must have also made sure that the document was actually read over and explained to the illiterate guarantor and that he ( the illiterate guarantor) understood the same before appending his signature or mark to it only by himself.The declaration of compliance with this requirement by the writer of a document is technically referred to as illiterate jurat. The typist as the author of the bond must have also ensured that nobody else signed or thumb imprinted the document on behalf of the illiterate person. If all these conditions were met by the bank, its  action to recover the debt from the illiterate guarantor would succeed other things being equal.None of all these conditions must be left unfulfilled. Otherwise, the bank's/creditor's action would fail in the circumstances.

It is also relevant to note that while the law is silent on whether the author of  a document to be executed by an illiterate as a party to an agreement must be a lawyer or not, except a land sale agreement and a declaration for compliance with the requirements for the formation of company under part A of the Companies and Allied Matters Act, it is advisable that lawyers should be engaged to author any document to be signed by an illiterate as a party so that there will be full assurance of compliance with the provisions of the law in the preparation of such document.

Thank you for reading.

See you tomorrow.