The Act that protects the Illiterate in a contractual agreement

INTRODUCTION
Contractual relations are central to both commerce and social life.As Pollock observed, a contract is “a set of promises of which the law will enforce.” Yet, the law recognizes that certain groups particularly illiteratesrequire additional safeguards to ensure fairness and prevent exploitation. Ghana’s legal framework, through the Illiterates’Protection Ordinance (Cap 262, 1912), its amendment under the Illiterates’Protection Act 1963 (Act 217), and the Contracts Act 1960 (Act 25), provides such protection.
This article situates these statutory provisions within the constitutionalframework, analyses judicial interpretation, and evaluates the policy rationale for requiring formality in contracts. It further compares Ghana’s approach with Nigeria and England, highlighting convergences and divergences in protecting vulnerable parties.

CONSTITUTIONALFRAMEWORK
Although the 1992 Constitution does not dedicate achapter exclusively to illiterates’rights,Article 11(1)(d) incorporates “existing law” into Ghana’s legal corpus, thereby sustaining the relevance of the Illiterates’Protection Act.Article 14(2) requires that persons arrested or detained be informed in a language they understand, while Article 25(1)(d) mandates the promotion of functional literacy. These provisions collectively affirm the constitutional commitment to protecting vulnerable persons.

STATUTORY PROTECTION UNDER THE ILLITERATES’PROTECTIONACT
The Illiterates’Protection Ordinance (Cap 262, 1912), as amended by Act 217 of 1963, remains the cornerstone of statutory protection for illiterates. Section 4(1)(2) of the Act 1963(Act 217) requires that documents prepared for illiterates be read over, explained, and signed or marked with their consent. Licensed writers are tasked with ensuring compliance, thereby preventing fraud and exploitation.Illiterates’Protection Act 1963(Act 217)Section 7(1) prescribes penalties for contravention, including fines or imprisonment.More significantly, non-compliance renders contracts void or unenforceable, particularly in land transactions where writing and registration are indispensable.

JUDICIALINTERPRETATION IN GHANA
The Ghanaian judiciary has consistently underscored the necessity of strict compliance. In Kwaku Bamfi Adomako v Opanin Kofi Duodu, the Supreme Court invalidated a land transaction for failure to comply with statutory requirements, stressing that mere signatures without explanation do not suffice to bind illiterate parties.Similarly, in Amuzu v Oklikah, the court held that failure to comply with statutory writing and registration requirements undermines enforceability. These decisions illustrate the judiciary’s fidelity to statutory safeguards and its broader role in protecting vulnerable persons.Ghana’s respect for the common law tradition places it in line with other common law jurisdictions. Contract formation follows similar patterns across these systems, and the Illiterates’Protection Act reflects a shared colonial heritage of protecting vulnerable parties. Ghana’s model combines statutory safeguards with common law principles, Nigeria enforces its statute more rigidly, whileEngland relies mainly on equitable doctrines such as non est factum. It is therefore useful to place Ghana’s approach in a comparative perspective, looking briefly at Nigeria and England.

COMPARATIVE PERSPECTIVES
NIGERIA
Nigeria, having a common colonial heritagewith Ghana, enacted the Illiterates Protection Act (Cap 83, Laws of Nigeria 1958). Just asGhana;it requires that documents prepared for illiterates be read over and explained, with the writer signing a certificate of compliance. Nigerian courts have consistently enforced this requirement. In Osefo v Okechukwu(1978) NCLR 335, the court held that failure to comply rendered the document inadmissible. The Nigerian approach mirrors Ghana’s emphasis on protecting illiterates, though enforcement has been more rigid, with courts excluding non-compliant documents entirely.

ENGLAND
English law does not have a dedicated statute protecting illiterates. Instead, protection is achieved through doctrines such as non est factum, which allows a person to plead that a document signed is not their deed if they did not understand its nature due to incapacity or misrepresentation. In Saunders v Anglia Building Society[1971] AC 1004, the House of Lords restricted the scope of non est factum, emphasizing that it applies only in exceptional circumstances. Unlike Ghana and Nigeria, England relies on equitable doctrines rather than statutory safeguards, reflecting a more case-by-case approach.
Ghana and Nigeria adopt statutory safeguards, while England relies on equitable doctrines. Ghana’s approach reflects a proactive legislative commitment, whereas England’s reliance on judicial discretion underscores flexibility but risks inconsistency.

FORMALITY IN CONTRACTS UNDERACT 25
The Contracts Act 1960(Act 25) provides the general framework for contract formation. Section 11 affirms that contracts need not be in writing unless statutes require otherwise, thereby accommodating everyday oral agreements. However, Section 14 creates a notable exception: contracts of guarantee must be in writing and signed by the guarantor. This provision protects guarantors from fraudulent claims and ensures clarity in financial obligations.
The Illiterates’Protection Act goes further by imposing additional formalities when dealing with illiterates. Any document prepared for an illiterate must be written, read over, explained, and signed by a licensed writer. Non-compliance renders such documents unenforceable, as reaffirmed in Kwaku Bamfi Adomako v Opanin Kofi Duodu; The Supreme Court of Ghana dismissed the appellants’challenge to the Court ofAppeal’s ruling,thereby affirming the validity of the land sale executed by Nana Odjobi Aduamoah IV. In its judgment, the Court underscored the binding effect of documents signed byilliterate parties, stressing that the substance of conduct and contextual circumstances outweigh mere formal technicalities.

POLICY CONSIDERATIONS
The requirement of formality serves three interrelated purposes:

1.Protection of vulnerable persons: In law, the principle of protecting vulnerable persons is rooted in fairness and justice. It recognizes that certain individuals such as illiterates, minors, the elderly, or those with disabilities may be disadvantaged in understanding or asserting their rights. The courts and statutes therefore impose safeguards to ensure that such persons are not exploited in transactions or legal dealings. In the Supreme Court’s rulingon Kwaku Bamfi Adomako v Opanin Kofi Duodu;illustrates this principle. By affirming that documents signed by illiterates can still be binding provided the context
shows genuine consent the Court balanced protection with practicality. It prevents
exploitation while ensuring that transactions remain reliable and enforceable

2.Certainty and evidence: Certainty and evidence in contract law ensure that agreements are clear, enforceable, and supported by reliable proof, reducing disputes and ambiguity. In Ghana, courts have emphasized that written documents, receipts, and contextual evidence provide the necessary clarity to uphold transactions. As in the case of Djan v. Owoo and Anothern[1976] 2 GLR 401 (High Court, Accra); The High Court held that the receipt, though incomplete, provided sufficient evidence of the transaction. The conduct of the parties and the context gave certainty to the agreement. where even in a contract formalities are lacking,when there is a reliable documentary evidence and clear conduct, this can establish certainty and therefor can make a contract enforceable

3. Public policy:
Public policy in contract law is about protecting societal interests and ensuring fairness. For illiterates, the law acknowledges their limited ability to read and interpret documents,making them vulnerable to fraud or undue influence. The Illiterates Protection Act, 1912 requires that any document signed by an illiterate must be read and explained to them in a language they understand. A witness must attest that the explanation was properly given. The courts often prioritize fairness and substance over strict formalities, ensuring that illiterates are not disadvantaged simply because they cannot read or write. The Supreme
Court in Akuteye v. Nyakoa reinforced that while documents signed by illiterates can be valid, they must meet statutory safeguards to protect fairness and prevent exploitation.

CONSEQUENCES OF NON-COMPLIANCE
As there are benefits from the adherence of laws or Acts, likewise are some ramifications on any individual who for the reasons known or unknowingly does not kowtow to a particular law or an act. The non-compliance with statutory requirements of the Illiterate Protection Ordinance Act 1912 (Cap 262), Amended Illiterates Protection Act 1963 (Act 217) exposes parties to significant risks: Contracts may be declared void or unenforceable
A Contracts may be declared void or unenforceable, when the court finds out that the contract does not have the statutory requirement of Illiterate Protection Act 1963 (Act 217), especially when the contract specifically have to do with an individual who cannot read or writing. Section 4(1)(2) of the Act supra throws light on the need of ensuring the illiterate understands the contract before it is concluded. Failure on the sides of each party can render the contract void and unenforceable.

Fraudulent exploitation becomes more likely.
The dangers the law sees is the potential duplicitous exploitation of illiterate’s engaging in a contract with a genuine intent. The fact that they cannot read, write or understand the content of an agreement could make them an easily prey to dubious individuals seeking to reach a contract with them.

Land transactions may be incapable of registration under the Land Registry Act 1962 (Act122). Section 5 of Land Registry Act 1962 (Act 122), which states that every instrument presented for registration must be proved by the oath of the grantor or one of the grantors, or of the grantee or one of the grantees, or of one of the subscribing witnesses, to have been duly executed by the
grantor. This requirement indicates that certain transactions may not be registered without proper proof, which could be considered incapable of registration under The judiciary has consistently refused to enforce agreements that bypass protective measures, thereby reinforcing the statutory intent.

CONCLUSION
The Illiterates’ Protection Act 1963 (Act 217), read together with the Contracts Act 1960 (Act 25) and constitutional provisions, underscores Ghana’s commitment to protecting illiterate persons in contractual dealings. Judicial authorities such as Kwaku Bamfi Adomako v Opanin Kofi Duodu and Amuzu v Oklikah reaffirm the necessity of compliance with statutory formalities. Comparative analysis reveals that while Ghana and Nigeria adopt statutory safeguards, England relies on equitable doctrines. Ultimately, Ghana’s approach reflects a stronger legislative commitment to protecting vulnerable persons, ensuring fairness, certainty, and justice in contractual relations.

REFERENCES
1. Constitution of the Republic of Ghana, 1992, art 11(1)(d). 19(2)(d) 25(1)(d)
2. Sir Frederick Pollock, Principles of Contract (Stevens & Sons, 1950).
3. Illiterates’ Protection Act 1963 (Act 217), Section 4(1)(2). S.7(1)
4. Kwaku Bamfi Adomako v Opanin Kofi Duodu [2011] GHASC 38.
5. Amuzu v Oklikah [1997–98] 1 GLR 89.
6. Contracts Act 1960 (Act 25), ss 11, 14.
7. Land Registry Act 1962 (Act 122).
8. Osefo v Okechukwu (1978) NCLR 335 (Nigeria).
9. Saunders v Anglia Building Society [1971] AC 1004 (HL).

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