Written by Onyekachi Umah, this article discusses the functions of a notary public in the Supreme Court of Nigeria, which, although not clearly set out in the Notaries Public Act, includes the notarization of documents and the taking of oaths, and emphasizes the fact that there is a presumption of validity when a power of attorney was previously issued and certified by a notary
introduction
Any person in Nigeria can make an agreement for themselves or for another person free of charge. An agreement can be made in almost any place except a place that suggests that a party entered into an agreement under duress or fraud. According to Nigerian law of evidence, however, there is a special status for a power of attorney issued and certified before a notary for Nigeria.
Notaries and their functions
The Nigeria Notary Public is an office reserved only for qualified and ordinary lawyers. These lawyers are appointed by the Chief Justice of Nigeria and sworn in by the Chief Justice of the states in which the lawyers practice. A notary in Nigeria performs all of the duties of a notary in England and is an officer in the Nigerian Supreme Court. The tasks here include; Certification of documents and taking oaths.
Unfortunately, the Notaries Public Act in Nigeria did not explicitly list the functions of the notary, but merely stipulated that a notary in Nigeria should do the work that a notary in England does. Judge Niki Tobi captured this loophole in his ruling before the Nigerian Supreme Court on this case BUHARI v INEC & ORS (2008) LPELR-814 (SC), where he stopped; “Although the Notaries Public Act does not specifically set out the duties or functions of a notary, Section 2 (2) of the Act vaguely and lazily provides for a notary appointed by the Chief Justice of Nigeria to perform and perform the same duties.” acts as a notary in England, a notary in England exercises the function of taking the oath and certifies and certifies certain categories or classes of documents by his handwriting and his official seal. In practice, notaries in Nigeria perform such functions. “
Power of attorney and notary
In general, an agreement can be made orally or in writing, and there is no specific paper or font size for agreements in Nigeria. In addition, registration with a court is not required for the agreement to be valid. A power of attorney is a power of attorney / consent given by a person to a person to do or not to do something on behalf of the person who has given such consent. However, a federal law in Nigeria (the Evidence Act 2011) has a special interest in an agreement that is a power of attorney.
The Evidence Act assumes that a power of attorney issued (signed) in front of a notary and certified by the notary is actually a power of attorney issued by the donor (manufacturer) or parties whose names and signatures appear as the manufacturers of the power of attorney. This is one of the few circumstances under which the courts in Nigeria allow speculation. The presumption is valid and conclusive unless and until there is evidence to the contrary to disprove this presumption.
The courts in Nigeria assume that a power of attorney issued in front of a notary and certified by the notary is actually issued by the person or persons who signed the power of attorney as the creator of the power of attorney. This is understandable as a notary is authorized to swear an oath to individuals in Nigeria, and when individuals come to the notary to sign a power of attorney, the court can assume that the individuals actually signed the power of attorney. After all, a notary is expected to be centuries away from lies, deception and fraud. In fact, when certifying documents, a notary is put on the same position as a judge, magistrate, consul, representative of Nigeria or the President of Nigeria.
Now, as there is a saying that “presumption is the mother of all mistakes”, the courts in Nigeria also have the power to reject and reject the presumption that a power of attorney issued before a notary was actually issued by the parties. In this way a court will allow the parties to the dispute to prove that a power of attorney was actually carried out (signed) by the alleged manufacturers.
In a judgment of the appellate court in the case of CHIEF GN OKOYE VS MR NONSO DUMEBI (2014) LPELR-24155 (CA), Agim JCA stated this; “The Supreme Court in MELWANI versus FIVE STAR INDUSTRIES LTD (2002) 1 SC 120 decided that a power of attorney not issued before the notary and notarized by him is not regarded as issued by the giver and the signature of the giver must be proven if it is claimed that the document was not made by the donor ”.
graduation
A power of attorney can be given in writing or orally. When a power of attorney is written and executed in front of a notary for Nigeria and notarized by the notary, it is assumed by all courts in Nigeria that the power of attorney has actually been signed and issued by their manufacturers. The presence and certification by a notary adds this presumption to a power of attorney. Also note that the same presumption applies when a power of attorney is issued (signed) and certified before a judge, magistrate, consul, representative of Nigeria or the President of Nigeria. A power of attorney that has not been issued and notarized by a notary therefore means that no court in Nigeria will assume that the power of attorney was actually issued by the manufacturer, and therefore the manufacturer’s signature must be proven if the manufacturer claims that the power of attorney was not given by him.
Authorities
Sections 1, 2, 3, 4, 5 and 6 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
Sections 1, 2, 6 of the Notaries Act of 1936.
Sections 150 and 259 of the Evidence Act, 2011.
Judgment of the Supreme Court of Nigeria (on the functions of notary public for Nigeria) in the Buhari v INEC & ORS (2008) LPELR-814 (SC).
Judgment of the Supreme Court of Nigeria (on the effect of a power of attorney not issued before a notary) in the case of MELWANI v FIVE STAR INDUSTRIES LTD (2002) 1 SC 120.
Judgment of the court of appeal (on the effect of a power of attorney not issued before a notary) in the case CHIEF GN OKOYE v MR. NONSO DUMEBI (2014) LPELR-24155 (CA).
Court of Appeal judgment (that agreements do not require a court or notary stamp to be valid) in the Okafor vTitilope & Ors case (2018) LPELR-44385 (CA).
Onyekachi Umah, LL.M, ACIArb (UK)
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