TITLE OF ARTICLE: Mistaken Identity in the Law of Contract: Whither the Position of the Law
AUTHOR:
EDWIN OBIMMA EZIKE, Ph.D., B.L., B.Phil. (Rome), B.D. (Rome). Senior Lecturer and Head, Department of Public and Private Law, Faculty of Law, University of Nigeria, Enugu Campus.
ABSTRACT:
This paper examines the intractable controversies surrounding mistaken identity in the law of contract and suggests ways of solving the problem. As the doctrine is purely common law, the relevant case laws and legislation were examined. It was found that there are conflicting decisions on the subject with the House of Lords taking two diametrically opposed positions in different cases. It was also discovered that there are no Nigerian cases on the subject. The local statutory provision that was examined – the Enugu State Contract’s Law, 2004 only codified the position in Cundy v Lindsay – that once there is a mistake as to identity the contract is void. This position has received sharp criticisms by modern learned authors as being detrimental to the innocent third purchaser for value without notice. The implication of these findings is that the law on the subject is still in a state of flux which leaves the parties to a contract more confused should there be a mistake as to identity. The paper seriously advocates for a harmonization of the law on mistaken identity and suggests that in cases of mistaken identity involving the innocent third purchaser for value without notice of the fraud, the contract should be voidable not void.