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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> CF Asset Finance Ltd v Okonji [2014] EWCA Civ 870 (24 June 2014) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2014/870.html Cite as: [2014] EWCA Civ 870

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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
HIS HONOUR JUDGE EDWARD BAILEY

		Royal Courts of Justice Strand, London, WC2A 2LL
		24th June 2014

Lord Justice Patten :

1. This is an appeal by the first and second defendants, Mrs Okonji and Mr Siaw, against an order of His Honour Judge Bailey dated 18 April 2013 giving judgment against them in favour of the claimant in the sum of £24,910 plus interest.
2. The appellants are the two partners in a firm of solicitors, Forest Solicitors, who practise in south-west London. The claimant, CF Asset Finance Limited ("CFAF"), as its name suggests, is a finance company which, through an associate company (CF Capital ("CFC")), provided the finance for some office equipment which was supplied by the third defendant, Ishirosoft Limited ("Ishirosoft"). The equipment in question comprised an IBM server, three ACER workstations, a Xerox Work Centre multifunction and various software packages. The benefit of the claim has been validly assigned to CFAF by CFC.
3. The contractual arrangements between the parties pleaded in the particulars of claim are entirely conventional. Ishirosoft sold the equipment to CFC on 9 November 2006 after the appellants had entered into a contract with CFC to hire the equipment from them. By March 2007 the hire agreement was in arrears and was terminated by CFC by a written notice dated 16 March 2007. The sum then due under clause 3.02 of the agreement was £23,065.13. CFC then assigned its right under the agreement to CFAF and notice of the assignment was given to the appellants on 8 August 2007.
4. The appellants' defence to the claim was that no contract had ever come into existence between themselves and CFC. Mrs Okonji, who was the person who was involved in the matter, gave evidence that in September 2006 she entered into a leasing agreement with Ishirosoft in respect of some telephone equipment. This brought her into contact with one of Ishirosoft's salesmen, a Mr Roland Ojo. As part of this transaction details were provided to Ishirosoft and Mr Ojo of the firm's bank account and sort code. This was followed on 25 October 2006 by the purchase from Ishirosoft of some conveyancing software which was later installed by Mr Ojo in the appellants' offices on 1 November.
5. The judge found that on 25 October discussions took place about the other possible requirements of the firm for computer and office equipment. Mr Ojo, who had an eye to further business, said that he would supply any such equipment on hire terms but Mrs Okonji told him that she would prefer to buy it outright rather than entering into a hire or loan agreement. There were a number of follow-up visits to the offices by Mr Ojo during which he attempted to persuade Mrs Okonji to change her mind and on one such visit on 30 October 2006 she indicated that she was at least prepared to consider a possible hiring arrangement but was concerned about having a poor credit rating. Mr Ojo said that he would investigate whether she would be able to obtain credit for the hire of the equipment and, to this end, produced two blank forms. One was a blank regulated hire agreement with CFC. The other was a blank CFC certificate of acceptance which the hirer is required to sign after taking delivery of the equipment. The certificate acknowledges that the hired goods have been delivered in good order and condition and authorises CFC to pay the supplier.
6. The judge found as a fact that Mr Ojo persuaded Mrs Okonji to sign both forms in blank for the sole purpose of ascertaining whether she could obtain sufficient credit to enable the hire to go ahead. There is no appeal from this finding. Mrs Okonji gave evidence which the judge accepted. Mr Ojo had by the date of the trial left the employment of Ishirosoft and was not called as a witness.
7. On 6 November 2006 Mr Ojo arrived at the appellants' offices with the equipment I have referred to. When challenged about it, he said that he had brought the goods to prove that the appellants had passed the necessary credit checks for hiring it and would return on 10 November with details of the costings and the completed hire agreement for signature. Mrs Okonji was not prepared to accept this. She said in her witness statement:

"I told him that I am not happy with him bringing these items to my office when we have not discussed the purchase price or repayment period and I do not want to buy these items from him anymore and he should take them back because I do not want to enter into any agreement with him anymore. He said he would come back on 10 November 2006 and left the goods at my office."

The judge accepted this evidence.

8. Mrs Okonji also said that she did not sign any further documents that day but there is in the papers a further copy of a certificate of acceptance which is dated 6 November 2006 and which appears to bear her signature. As to that, the judge said:

"61. There is a different certificate of acceptance dated 6 November 2006, at page 84 of the bundle. That, I am bound to say, is very similar to, but not precisely the same signature of the first defendant and she was unable to say that it was not hers. The balance of the document is completed in a different way and quite how it came about that she signed this document, I really cannot say. It may be that she has forgotten that on 6 November 2006 she was persuaded to sign the document when the equipment came, notwithstanding the fact that she was objecting to it, although it does not seem very likely, it is always possible in cases such as this, where I fear, on the evidence before me, I must conclude that Mr Roland Ojo has not behaved as he should, and that some other practice was put into place.

62. I cannot explain the certificate of acceptance, but I take into account the fact of that certificate, the fact that Mrs Okonji has been unable to provide any satisfactory explanation for that certificate, when reaching my conclusion that, nonetheless, her evidence that she did not enter into, complete the hire agreement, neither did she want to enter into any agreement with the claimant and as I say I accept that case. So, it is disappointing, but one must conclude that Mr Roland Ojo practised some deceit and fraud upon Mrs Okonji.

63. It is upsetting to have to arrive at that conclusion because Ishirosoft Ltd are vicariously liable for the actions of Mr Roland Ojo; the deceit he practised on Mrs Okonji was plainly within the scope and course of his employment. This is upsetting because Mr Williams Ogobule, the proprietor of Ishirosoft Ltd, who gave evidence before me, but was not able to deal at first hand with any relevant facts, struck me as a very pleasant gentleman. I have no reason whatever to doubt the honesty and integrity with which he conducts his business, a business which, having had a measure of success, is now suffering as so many companies are with a downturn in the economy. I would wish to stress that Mr Roland Ojo's misdeeds are by law to be visited upon Ishirosoft Ltd, but that in no way is to the discredit of Mr Williams Ogobule."

9. What Mrs Okonji did not know on 6 November was that Mr Ojo had already been in touch with CFC to arrange for the finance to be put in place to enable the equipment to be purchased from Ishirosoft. Having completed the details of the transaction on the blank hire agreement which Mrs Okonji had signed on 30^th October, Mr Ojo then forwarded it as a proposal to CFC. On 9 November CFC accepted the proposal by executing the hire agreement and then issued a purchase order to Ishirosoft for the relevant equipment. The cost was then invoiced by CFC to CFAF.
10. On 15 November Mrs Okonji received a copy of the completed hire agreement. It provided for a hire period of 36 months at a monthly rental of £736.10; specified Ishirosoft as the supplier of the listed equipment; and included the firm's bank details in a direct debit instruction.
11. Mrs Okonji gave evidence to the judge that she remonstrated with Mr Ojo about the agreement and insisted that she had not entered into any agreement with CFC. She asked for the goods to be collected. On 16 November she telephoned CFC asking if they had received her fax. This was a letter of the same date notifying CFC "that we have cancelled the above lease agreement …". The letter went on:

"The reasons for cancellation are as follows:

1. The dealer failed to provide us with the following details despite numerous requests:

(a) the cash price

(b) the total amount payable

(c) the amount of each payment and when they are payable.

2. The dealer added items, which we did not order, i.e. the Xerox workcentre multifunction was never ordered nor indeed delivered. We only became aware of the inclusion of this item on receipt of your letter dated 10^th and 14^th November 2006.

3. We only requested one Lawmaster not 5 as stated in the Agreement.

4. We did not order Conveyancer as we already had one, which was installed by the dealer on 1^st November 2006,

5. The dealer informed us that we needed to sign the uncompleted agreement just to enable you to carry out credit checks and we would see a copy of the completed agreement before it is submitted to you for approval.

6. The initials "FO" that appeared on the box "initialled by the Hirer" at the bottom of pages 2, 3. 4, 5 and 6 of the Agreement was not initialled Mrs Franca Okonji."

12. CFC pursued the matter with Ishirosoft and were told in a letter dated 27 November that:

"The CF certificate of acceptance was signed when they received the products, except Mrs Okonji has got short memory, she would not have signed this document if the products requested were not complete, the document was completed by her and duly signed by herself, as I have always insisted to the sales team that the signatory should always sign the document because of situations like this arising.

It should be pointed out that neither Mrs Franca Okonji nor her Partner Kwame Siaw has called this office to raise this complaint as this is the first time we are made of such."

13. CFC took the position that they were not prepared to remove the equipment but wanted payment of the rent due under the hire agreement which Mrs Okonji signed. There was further inconclusive correspondence which I need not set out and then on 16 March 2007 CFC exercised the power under clause 3.02 to terminate the agreement for arrears of rent. It is not disputed that the right to terminate had arisen if the agreement was valid and subsisting. Nor are the sums due in question. The only substantive issue for the judge on the facts as found by him was whether the hire agreement was binding on the appellants.
14. The judge said in relation to the signing of the two blank forms on 30 October:

"54. I accept her evidence that she signed these forms in blank. It is extraordinary that she should have done so. It does not sit well with her as a competent solicitor that she did so, but that she did so, I accept. I think I should also comment, lest it be thought that I am being unduly critical of Mrs Okonji, that there are very few of us who can say that they have never ever done anything which in retrospect was foolish; it seems to me probable that Mr Ojo was a rather pushy and persuasive salesman and was able to persuade Mrs Okonji to do something which, had she been left by herself for any length of time, she would never have dreamed of doing it."

15. The fraud of Mr Ojo in persuading Mrs Okonji to sign the blank forms, whilst sounding in damages itself, does not entitle the appellants to seek rescission of the hire agreement unless Mr Ojo acted as the agent of CFC in procuring her signature to the agreement. That is not alleged. The appellants can therefore only succeed against CFC by establishing either that no contract ever came into existence or that the agreement was a nullity on account of a mistaken belief as to its purpose on the part of Mrs Okonji when signing it.
16. The appellants therefore rely on two alternative defences to the claim. First they say that any offer contained in the signed hire agreement that Mr Ojo forwarded to CFC had been revoked by what Mrs Okonji had said to Mr Ojo on 6 November. For this argument to succeed the appellants must establish that Mr Ojo had authority to act as CFC's agent at least for the purpose of receiving the revocation of the offer. The alternative line of defence is non est factum. The appellants say that Mrs Okonji signed the draft agreement solely so that it could be used to obtain confirmation of her credit status and not with the intention that it should have any contractual effect. This is said to constitute a fundamental misapprehension of such a kind as to enable her to disown the contract which has come into existence by the use of the agreement which she signed. The judge did not deal with the defence based on revocation of the offer but rejected the plea of non est factum on the ground that it was excluded by Mrs Okonji's negligence. The appellants appeal against his judgment on both grounds with the leave of Kitchin LJ.

Revocation of the offer

17. Absent some agreement to the contrary, an offer may be withdrawn at any time up to its acceptance. But, to be effective, the revocation of the offer must be communicated to the offeree either directly or through some intermediary. It is not clear from the evidence precisely when Mr Ojo forwarded the completed draft agreement to CFC for their approval. We know that it must have been between 30 October and 9 November when the proposal was accepted. Mr Bogle submits that the precise timing does not matter because even if the offer comprised in the completed hire agreement had not been presented to CFC until some time between 6 and 9 November, Mr Ojo (as CFC's agent for this purpose) knew after 6 November that the appellants did not wish to enter into a hire contract with CFC and therefore ought not to have forwarded the agreement to them as a subsisting offer by the appellants to enter into a contract on those terms.
18. Mr Pangraz for CFC accepts that what Mrs Okonji said to Mr Ojo on 6 November was effective to revoke any offer contained in the draft agreement. But he contends that Mr Ojo was not the agent of CFC for the purpose of receiving the revocation of an offer and that what passed between Mrs Okonji and him on 6 November cannot therefore be treated as the communication of that revocation to CFC prior to their acceptance of the offer on 9 November.
19. The draft hire agreement which Mrs Okonji signed on 30 October states in clause 4.02 that :

"Except as provided by statute, or where expressly authorised by the Owner in writing, no Supplier by whom the Equipment was or is to be supplied was or is deemed to be the agent of the Owner."

20. In order to see what CFC (as Owner) did expressly authorise, one has to go to the trading agreement between CFC and Ishirosoft which set out the terms of business between the two companies at the relevant time. Set out in the form of a letter to Ishirosoft, this provided that:

"2. Introduction of Customers

You will introduce Customers by sending to us completed Proposal forms on behalf of prospective Customers.

We shall consider such Proposals, which must state, whether the Goods are new or otherwise and will advise you of whether or not they are acceptable to us. We will indicate our decision of such Proposal by issuing written notice.

3. Acceptance of Documentation

For those accepted transactions the Agreements will be written on one of our standard forms of Agreement.

Provided that the documentation has been satisfactorily completed, we will then return a copy of the completed Agreement to the Customer.

…

13. Agency

Apart from these terms, you have no authority to act as our agent or to bind or commit us to any obligation, financial or otherwise, to a Customer or any other third party.

In particular you will not purport to act as our agent in negotiations with a prospective Customer prior to entry into an Agreement."

21. Mr Pangraz accepts that clause 2 of the trading agreement does create a limited agency between CFC and Ishirosoft for the purpose of their introducing customers and, in particular, in respect of the submission of completed proposal forms. That agency does not extend to negotiations about the terms of the proposed hire agreement nor is it alleged, as I have mentioned, that Ishirosoft should be treated as CFC's agent in respect of the representations made by Mr Ojo in procuring Mrs Okonji's signature to the draft agreement on 30 October or the certificate of acceptance on 6 November. But I have considerable difficulty in drawing any relevant distinction between Mr Ojo's accepted authority to forward the proposals to CFC as its agent and his authority to receive notice of any revocation of such proposals. That distinction was rejected in Financing Ltd v Stimson [1962] 1 WLR 1184 where a car dealer had authority to provide the customer with hire purchase forms on behalf of the credit company and forward them to the company once completed. The Court of Appeal held that the dealer was also the credit company's agent for the purpose of receiving communications from the customer including a notice of revocation. Donovan LJ (at p. 1190) said:

"The dealer in this case was clearly Finance Company's agent to do a variety of things: to receive an offer of hire purchase; to tell the proposed hire purchaser, Mr Stimson, that Finance Company would accept the business; to ensure that comprehensive insurance was effected by Mr Stimson; and thereafter to deliver the car to him. In the written hire purchase form of agreement there was no clause negativing agency between Finance Company and the dealer. In these circumstances, authority to receive a notice of revocation of the hire purchase offer was, in my opinion, within the dealer's authority as ostensible agent for Finance Company…"

22. It seems to me to be necessarily implicit in the agency which is conceded that Mr Ojo must also have had at least ostensible authority to receive and communicate to CFC any decision by the customer not to go ahead which was made between the submission of the proposal and its acceptance by CFC. Consequently, even if the decision to withdraw the offer was communicated to Mr Ojo before he (or before Ishirosoft) had actually submitted the proposal to CFC then it is arguable that he was obliged as their agent not to proceed with the matter. But whether one analyses it as a duty not to forward the proposal or as authority to receive notice of the revocation of the offer, it must follow that CFC were given notice of the appellants' decision not to proceed on 6 November and there was therefore no offer that was capable of acceptance on 9 November.
23. For this reason, I would therefore allow the appeal.
24. The defence of non est factum is more difficult. The judge directed himself in accordance with the decision of this Court in United Dominions Trust Ltd v Western [1976] 1 QB 513 that a loan agreement signed in blank that was later filled in (in that case by a car salesman) with figures which were materially different from what had been represented to the defendant at the time when he signed the agreement and which the defendant believed was a hire purchase agreement remained binding on the signatory. The finance company was not aware that the draft loan agreement presented to them signed by the defendant was anything other than what it purported to be; namely an offer by the defendant to contract on those terms. Megaw LJ based his judgment on a passage from the speech of Lord Wilberforce in Gallie v Lee [1971] AC 1004 where an elderly lady with poor eyesight was prevailed upon to sign a document in the belief that it was a deed of gift of her house in favour of her nephew when in fact it was an assignment of her leasehold interest in the house to one of her nephew's business associates who then mortgaged the house as security for his debts. The House of Lords rejected her plea of non est factum as a defence to the mortgagee's claim for possession. Lord Wilberforce said (at p. 1027):

"In my opinion, the correct rule, and that which in fact prevailed until Bragg's case is that, leaving aside negotiable instruments to which special rules may apply, a person who signs a document, and parts with it so that it may come into other hands, has a responsibility, that of the normal man of prudence, to take care what he signs, which, if neglected, prevents him from denying his liability under the document according to its tenor. I would add that the onus of proof in this matter rests on him, ie to prove that he acted carefully, and not on the third party to prove the contrary. I consider therefore that Carlisle and Cumberland Banking Co v Bragg was wrong, both in the principle it states and in its decision, and that it should no longer be cited as an authority for any purpose."

25. Both Scarman and Bridge LJJ agreed with Megaw LJ that it made no difference for this purpose that the defendant had entrusted the completion of the document to an intermediary as opposed to having signed a completed document. Scarman LJ (at p. 523) said:

"I cannot accept Mr Eady's submission that there is a great difference between signing blind a completed document the contents of which one has not read and signing a printed document, as here, with the blanks for the particular transaction not filled in but agreeing to, or authorising, another to fill in those blanks and the figures later. It seems to me that such a man does make the document that he is signing his document; he takes responsibility for it; and he takes the chance of a fraudulent filling in of the blanks. True, it is technically a different situation from signing a completed document; but I think it to be a distinction without a substantial difference. It appears to me that the plea of non est factum is just not available to such a man; he cannot be heard to say in those circumstances that there is no consensus ad idem."

26. It is evident from these passages that the defence was held to be inapplicable in United Dominions Trust Ltd because of the negligence of the defendant in taking the risk that his signature of the uncompleted agreement would not be misused. As a consequence, the defendant rather than the hire company should bear the consequences of the intermediary's fraud.
27. The court's desire to confine the effectiveness of a plea of non est factum to very limited circumstances has undoubtedly been dictated by its legal consequences. To declare the contract a nullity has obviously serious and adverse consequences for third parties who may have relied on the contents of the document such as the claimant in this case. Their interests cannot be protected or at least taken into account by the court as they might have been had the contract been voidable for misrepresentation and what the appellants were seeking was equitable rescission.
28. But it is important to keep in mind that the defendant who relies on the doctrine of non est factum must establish not only that his release of the signed document was not negligent but also that his understanding of the nature of the document was so fundamentally different from what the document actually was as to enable him to disown his signature to it. The judge in this case held that the appellants' reliance on non est factum was excluded by Mrs Okonji's negligence in signing the draft agreement but there are, I think, equal difficulties in applying the concept of a mistake as to the nature of the document to the present case where Mrs Okonji was not the least confused as to what she was signing but believed that Mr Ojo would only use it for the purpose of ascertaining her credit status.
29. Although this point does not arise for decision because of the consequences of the revocation of any offer which the draft agreement contained, my own view is that a mistake of this kind is not enough to bring the doctrine into operation. In Gallie v Lee various phrases are used to attempt to define what level of misapprehension is required. Lord Hodson said that the error of the signatory must go to "the substance of the whole consideration or to the root of the matter". An error as in that case as to the identity of the assignee was not enough. Viscount Dilhorne said that the document signed had to be "radically different in character" from what the signer thought it was. Lord Wilberforce thought that a document should be held to be void as opposed to voidable:

"only when the element of consent to it is totally lacking, that is, more concretely, when the transaction which the document purports to effect is essentially different in substance or in kind from the transaction intended. Many other expressions, or adjectives, could be used - "basically" or "radically" or "fundamentally." In substance, the test does not differ from that which was applied in the leading cases of Thoroughgood (1582) 2 Co.Rep. 9b and Foster v. Mackinnon (1869) L.R. 4 C.P. 704, except in moving from the character/contents distinction to an area in better understood modern practice."

30. The test adopted by Byles J in Foster v Mackinnon (1869) L.R. 4CP 704 was expressed in these terms:

"It seems plain, on principle and on authority, that, if a blind man, or a man who cannot read, or who for some reason (not implying negligence) forbears to read, has a written contract falsely read over to him, the reader misreading to such a degree that the written contract is of a nature altogether different from the contract pretended to be read from the paper which the blind or illiterate man afterwards signs; then, at least if there be no negligence, the signature so obtained is of no force. And it is invalid not merely on the ground of fraud, where fraud exists, but on the ground that the mind of the signer did not accompany the signature; in other words, that he never intended to sign, and therefore in contemplation of law never did sign, the contract to which his name is appended.

…

But, in the case now under consideration, the defendant, according to the evidence, if believed, and the finding of the jury, never intended to indorse a bill of exchange at all, but intended to sign a contract of an entirely different nature. It was not his design, and, if he were guilty of no negligence, it was not even his fault that the instrument he signed turned out to be a bill of exchange. It was as if he had written his name on a sheet of paper for the purpose of franking a letter, or in a lady's album, or on an order for admission to the Temple Church, or on the fly-leaf of a book, and there had already been, without his knowledge, a bill of exchange or a promissory note payable to order inscribed on the other side of the paper. To make the case clearer, suppose the bill or note on the other side of the paper in each of these cases to be written at a time subsequent to the signature, then the fraudulent misapplication of that genuine signature to a different purpose would have been a counterfeit alteration of a writing with intent to defraud, and would therefore have amounted to a forgery. In that case, the signer would not have been bound by his signature, for two reasons, - first, that he never in fact signed the writing declared on, - and, secondly, that he never intended to sign any such contract.

In the present case, the first reason does not apply, but the second reason does apply. The defendant never intended to sign that contract, or any such contract. He never intended to put his name to any instrument that then was or thereafter might become negotiable. He was deceived, not merely as to the legal effect, but as to the actual contents of the instrument."

31. Whichever of these formulations is applied, it is difficult to see how a mistaken belief as to the use to which the document will be put by the signer's agent or intermediary can qualify. The essence of the defence is the nullification of the execution or signature of the document based on a misunderstanding of its nature. Mrs Okonji knew what she was signing. Her error was to believe that Mr Ojo would only use the draft agreement for a credit check. But that is not a misapprehension as to the nature of the document and she is unable to say that what she thought she had signed was something different from what she in fact signed. Her remedy is to sue Mr Ojo which she has done and for which she has obtained judgment. In my view, the judge was right to reject the defence of non est factum.

Lord Justice Sullivan :

32. I agree that the appeal should be allowed on the ground that the appellant's offer was revoked before it was accepted.
33. The judge's conclusion that Mrs. Okonji was negligent in signing the blank hire agreement was plainly correct.
34. In these circumstances it is not necessary for us to decide whether, absent negligence, the remedy of non est factum would have been available to the appellants, and I express no view on that question.

Master of the Rolls :

35. I agree that this appeal should be allowed on the grounds that, for the reasons given by Patten LJ, the appellants' offer was revoked before it was accepted. Accordingly, no contract was concluded.
36. For that reason, it is unnecessary to decide whether the appellants' defence of non est factum is made out and whether for that additional reason there was no contract between the parties. The judge rejected the defence on the grounds that Mrs Okonji's decision to sign a blank hire agreement with CFC on 30 October was negligent: see paras 23, 54 and 67 to 74 of his judgment. There has been no appeal from that finding. It is fatal to a reliance on the defence of non est factum. It is extraordinary that Mrs Okonji, a practising solicitor, was persuaded to sign a document which (i) on its face stated that it was a "Hire Agreement Regulated by the Consumer Credit Act 1974" and (ii) contained a box in which her signature appears with the words "This is a Hire Agreement regulated by the Consumer Credit Act 1974. Sign it only if you want to be legally bound by its terms". It is clear from the case-law, including the leading authority of Gallie v Lee [1971] AC 1004. that a person may not raise the defence of non est factum if he has been guilty of negligence in appending his signature to the document which he wishes to disown: see, for example, per Lord Reid at p 1016 B-D. There is a heavy burden on the person who seeks to invoke the remedy. He must prove that he took "all reasonable precautions in the circumstances". Mrs Okonji comes nowhere near discharging this burden.
37. In view of the judge's finding that Mrs Okonji was negligent in signing the blank hire agreement in the circumstances of this case, it is not necessary to decide whether, absent negligence, the remedy of non est factum would be available to the appellants. Patten LJ says that it would not be available because Mrs Okonji knew what she was signing. She was not under any misapprehension as to the nature or contents of the document and she is not able to say that what she thought she had signed was different, let alone radically different, from what she had in fact signed.
38. I see the force of the view expressed by Patten LJ, but since (i) we did not hear full argument on the point and (ii) it is not necessary to determine the issue in the present case, I would prefer not to express a concluded view on it. The remedy of non est factum is usually invoked where a party signs a document which is essentially different in character or contents from that which he intends to sign. In most cases, the issue is whether the difference is sufficiently fundamental or radical to invalidate the transaction. What is unusual about this case is that Mrs Okonji was not mistaken about the nature or contents of the document that she signed. She understood that she was signing a hire agreement. Even a non-lawyer would have understood that.
39. Her mistake was that, despite the plain wording on the face of the document, she believed that it would have no contractual effect and that it would be used solely for the purpose of enabling a credit check to be carried out. There is some support in Gallie v Lee for the view that such a mistake may enable her to invoke the remedy (subject to the question of negligence). Lord Pearson (p 1031 B-H) agreed with the reasoning of Russell LJ and "in particular with the principle that importance should be attached to the 'object of the exercise' when dissimilar legal documents may have similar practical effects". Mrs Okonji believed that the object of the exercise and the practical effect of the blank hire agreement (use for the conduct of a credit check) were radically different from its actual practical effect (as a binding contract of hire). But for the reasons I have given, I propose to say no more about this difficult issue.
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