Can The Non- Payment Of Stamp Duty On A Power Of Attorney Render Such A Power Of Attorney Inadmissible In Evidence?

By Chioma Angela Okeke

A stamp duty is a levy/fee chargeable under the Stamp Duties Act
(SDA) or any other Act.[1] It is generally
charged at a flat rate or ad valorem (percentage of the transaction
value). Only the government (Federal or State) shall be the only
competent authority to impose, charge and collect duties.[2] Some examples of instruments that require stamp
duty are Agreements: Hire purchase,[3] bill of
landing,[4] bill of sale,[5]
charter party,[6] conveyance on sale,[7] Lease,[8] letters of
allotment and letters of renunciation,[9]
letter or power of attorney for the purpose of appointing a proxy
to vote at a meeting,[10]policy of
insurance,[11] power of attorney
(irrevocable/land related), memorandum of understanding(relating to
ordinary agreements, land, joint venture etc), Deed of assignment
etc.

Non- payment of stamp duty on a power of attorney sought
to be admitted in evidence.

A party to a case may during the course of hearing of that case
seek to tender through his counsel a power of attorney for
different purposes. If the purpose of tendering the power of
attorney is to prove title, it must be properly registered in
accordance with the relevant laws.[12] On the
other hand, if the purpose of tendering the power of attorney is
merely to serve as evidence of payment of purchase price or of
transaction, the court has held such power of attorney to be
admissible in evidence.[13] Now, even where
the power of attorney being sought to be tendered is to serve as
evidence of transaction, there still remains the issue of whether
such a power of attorney upon which stamp duty has not been paid
for, can be admitted in evidence.

Generally, every instrument bearing a certificate of a
commissioner that it is not chargeable with duty or that it is duly
stamped, or being stamped with the amount of duty assessed and
certified by the commissioner shall be admissible in evidence and
available for all purposes, notwithstanding any objection relating
to duty.[14] However, an instrument executed in
Nigeria, or relating, wheresoever executed, to any property situate
or to any matter or thing done or to be done in Nigeria, shall not,
except in criminal proceedings, be given in evidence, or be
available for any purpose whatever, unless it is
duly stamped in accordance with the law in force in Nigeria
at the time when it was first executed.[15]
This means that every instrument which ought to be chargeable
should not be admitted in evidence in civil proceedings except in
criminal proceedings, irrespective of the purpose for which it was
pleaded.

So, where an objection is raised as to the admissibility of a
chargeable instrument (like a power of attorney) which no stamp
duty has been paid, what should the court do in the
circumstance?

Section 22 (1) of the SDA provides:

Upon the production of an instrument chargeable with any duty as
evidence in any court of civil judicature in Nigeria, or before any
arbitrator or referee, notice shall be taken by the Judge,
magistrate, arbitrator, or referee of any omission or insufficiency
of the stamps thereon, and if the instrument is one which may
legally be stamped after the execution thereof, it may, on payment
to the officer of the court whose duty it is to read the
instrument, or to the arbitrator or referee, of the amount of the
unpaid duty, and the penalty payable on stamping the same, and of a
further sum of two naira, be received in evidence, saving all just
exceptions on other grounds.

(2) The officer, or arbitrator, or referee receiving the duty
and penalty shall give a receipt for the same, and make an entry in
the proper book kept for the purpose of showing receipts of money
and of the amount thereof, and shall communicate to a commissioner
the name or title of the proceedings in which and of the party from
whom, he received the duty and penalty, and the date and
description of the instrument, and shall pay over to the Accountant
-General the money so received by him for the duty and penalty.

(3) On production to the commissioner of any instrument in
respect of which any duty or penalty has been paid, together with
the receipt, the payment of the duty and penalty shall be denoted
on the instrument.

In the case of OKUWOBI V ISHOLA (1973) 3 SC 
(REPRINT) 31 AT 34 PARAGRAPHS 34 TO 42 the  Supreme
court  per Elias CJN (of blessed memory) held thus;

“We think that it was wrong of the learned Chief Magistrate to
have held a document inadmissible merely on the ground of non-
stamping, since the purpose of the requirement of stamping is to
ensure that Government does not lose revenue thereby. The learned
Chief Magistrate could have directed the   document in
question be duly stamped and then received it in evidence.”

The implication of the above sections of the SDA and the case of
Okuwobi v Ishola is that whenever there is objection as to the non-
payment of stamp duty on a chargeable document, the court need not
reject the document rather, order the party tendering the document
to pay the appropriate stamp duty required and any  penalty
applicable under the SDA for the said documents within reasonable
time as the court may deem fit.

Conclusion

Unlike a power of attorney which if pleaded as evidence of
transaction may be admissible in evidence even without being
registered, a power of attorney upon which a stamp duty has not
been charged (and paid for) will remain inadmissible unless its
stamp duty is paid for or admitted upon the condition that the
stamp duty & any penalty be paid.

Chioma Angela Okeke is a lawyer with over 15
years legal experience. She holds a B.L and an MBA. She also has an
LLM in Criminal Law and Criminal Justice from the University of
Sussex, UK. Chioma Okeke is a Fellow of the Institute of Chartered
Mediator/Conciliator and a member of the Institute of Chartered
Secretary/Administrator. She is a writer and has several published
articles to her credit. Contact:
cane_ogbalu@yahoo.com

[1] Stamp Duties Act Cap S8 LFN 2004  (SDA), s
2.

[2] SDA, s 4

[3] SDA, s 30

[4] SDA, s 44.

[5] SDA, s 45.

[6] SDA, s 46.

[7] SDA, s 52 -64.

[8] SDA, s 68 – 69.

[9] SDA, s 72.

[10] SDA, s 74.

[11] SDA, 84.

[12] Land Registration Act Cap. 515 LFN
(Abuja) 1990, ss 2, 15, ABUBAKAR V WAZIRI (2008) 14 NWLR Part
1108 at 507 (SC).

[13] ERO V TINUBU (2012) 8 NWLR
PART 1301 P 125 paras B-F; Lawani v Grillo & Ors (2018) LPELR
-44912(CA).

[14] SDA, s 19

[15] SDA, s 22(4)

By Chioma Angela Okeke

A stamp duty is a levy/fee chargeable under the Stamp Duties Act
(SDA) or any other Act.[1] It is generally
charged at a flat rate or ad valorem (percentage of the transaction
value). Only the government (Federal or State) shall be the only
competent authority to impose, charge and collect duties.[2] Some examples of instruments that require stamp
duty are Agreements: Hire purchase,[3] bill of
landing,[4] bill of sale,[5]
charter party,[6] conveyance on sale,[7] Lease,[8] letters of
allotment and letters of renunciation,[9]
letter or power of attorney for the purpose of appointing a proxy
to vote at a meeting,[10]policy of
insurance,[11] power of attorney
(irrevocable/land related), memorandum of understanding(relating to
ordinary agreements, land, joint venture etc), Deed of assignment
etc.

Non- payment of stamp duty on a power of attorney sought
to be admitted in evidence.

A party to a case may during the course of hearing of that case
seek to tender through his counsel a power of attorney for
different purposes. If the purpose of tendering the power of
attorney is to prove title, it must be properly registered in
accordance with the relevant laws.[12] On the
other hand, if the purpose of tendering the power of attorney is
merely to serve as evidence of payment of purchase price or of
transaction, the court has held such power of attorney to be
admissible in evidence.[13] Now, even where
the power of attorney being sought to be tendered is to serve as
evidence of transaction, there still remains the issue of whether
such a power of attorney upon which stamp duty has not been paid
for, can be admitted in evidence.

Generally, every instrument bearing a certificate of a
commissioner that it is not chargeable with duty or that it is duly
stamped, or being stamped with the amount of duty assessed and
certified by the commissioner shall be admissible in evidence and
available for all purposes, notwithstanding any objection relating
to duty.[14] However, an instrument
executed in Nigeria, or relating, wheresoever executed, to any
property situate or to any matter or thing done or to be done in
Nigeria, shall not, except in criminal proceedings, be given in
evidence, or be available for any purpose
whatever, unless it is duly stamped in accordance with the
law in force in Nigeria at the time when it was first
executed.[15] This means that every
instrument which ought to be chargeable should not be admitted in
evidence in civil proceedings except in criminal proceedings,
irrespective of the purpose for which it was pleaded.

So, where an objection is raised as to the admissibility of a
chargeable instrument (like a power of attorney) which no stamp
duty has been paid, what should the court do in the
circumstance?

Section 22 (1) of the SDA provides:

Upon the production of an instrument chargeable with any duty as
evidence in any court of civil judicature in Nigeria, or before any
arbitrator or referee, notice shall be taken by the Judge,
magistrate, arbitrator, or referee of any omission or insufficiency
of the stamps thereon, and if the instrument is one which may
legally be stamped after the execution thereof, it may, on payment
to the officer of the court whose duty it is to read the
instrument, or to the arbitrator or referee, of the amount of the
unpaid duty, and the penalty payable on stamping the same, and of a
further sum of two naira, be received in evidence, saving all just
exceptions on other grounds.

(2) The officer, or arbitrator, or referee receiving the duty
and penalty shall give a receipt for the same, and make an entry in
the proper book kept for the purpose of showing receipts of money
and of the amount thereof, and shall communicate to a commissioner
the name or title of the proceedings in which and of the party from
whom, he received the duty and penalty, and the date and
description of the instrument, and shall pay over to the Accountant
-General the money so received by him for the duty and penalty.

(3) On production to the commissioner of any instrument in
respect of which any duty or penalty has been paid, together with
the receipt, the payment of the duty and penalty shall be denoted
on the instrument.

In the case of OKUWOBI V ISHOLA (1973) 3 SC 
(REPRINT) 31 AT 34 PARAGRAPHS 34 TO 42 the  Supreme
court  per Elias CJN (of blessed memory) held thus;

“We think that it was wrong of the learned Chief Magistrate to
have held a document inadmissible merely on the ground of non-
stamping, since the purpose of the requirement of stamping is to
ensure that Government does not lose revenue thereby. The learned
Chief Magistrate could have directed the   document in
question be duly stamped and then received it in evidence.”

The implication of the above sections of the SDA and the case of
Okuwobi v Ishola is that whenever there is objection as to the non-
payment of stamp duty on a chargeable document, the court need not
reject the document rather, order the party tendering the document
to pay the appropriate stamp duty required and any  penalty
applicable under the SDA for the said documents within reasonable
time as the court may deem fit.

Conclusion

Unlike a power of attorney which if pleaded as evidence of
transaction may be admissible in evidence even without being
registered, a power of attorney upon which a stamp duty has not
been charged (and paid for) will remain inadmissible unless its
stamp duty is paid for or admitted upon the condition that the
stamp duty & any penalty be paid.

Chioma Angela Okeke is a lawyer with over 15
years legal experience. She holds a B.L and an MBA. She also has an
LLM in Criminal Law and Criminal Justice from the University of
Sussex, UK. Chioma Okeke is a Fellow of the Institute of Chartered
Mediator/Conciliator and a member of the Institute of Chartered
Secretary/Administrator. She is a writer and has several published
articles to her credit. Contact:
cane_ogbalu@yahoo.com

[1] Stamp Duties Act Cap S8 LFN 2004
 (SDA), s 2.

[2] SDA, s 4

[3] SDA, s 30

[4] SDA, s 44.

[5] SDA, s 45.

[6] SDA, s 46.

[7] SDA, s 52 -64.

[8] SDA, s 68 – 69.

[9] SDA, s 72.

[10] SDA, s 74.

[11] SDA, 84.

[12] Land Registration Act Cap. 515 LFN (Abuja)
1990, ss 2, 15, ABUBAKAR V WAZIRI (2008) 14 NWLR Part 1108 at
507 (SC).

[13] ERO V TINUBU (2012) 8 NWLR PART
1301 P 125 paras B-F; Lawani v Grillo & Ors (2018) LPELR
-44912(CA).

[14] SDA, s 19

[15] SDA, s 22(4)