Daily Law Tips (Tip 762) by Onyekachi Umah, Esq., LL.M,
ACIArb(UK)
![image](/2021/03/SRJ.jpg")
Introduction:
Any person in Nigeria can make an agreement for himself or for
another person for free. Agreement can be made in almost any place,
apart from a place that may suggest that a party made an agreement
under force or fraud. However, according to the Nigerian law of
evidence, there is a special position for a power of attorney
executed before and authenticated by a Notary Public for
Nigeria.
![image](/2021/01/payne-alex.jpg")
Notaries Public and their Functions:
The Notary Public For Nigeria is an office reserved only for fit
and proper senior legal practitioners. Such legal practitioners are
appointed by the Chief Justice of Nigeria and sworn-in by Chief
Judges of the states where the legal practitioners practice. A
Notary Public in Nigeria performs all the duties of a Notary Public
in England and is an officer of the Supreme Court of Nigeria. The
duties here, include; certification of documents and administration
of oaths.
Unfortunately, the Notaries Public Act in Nigeria, failed to
specifically list the functions of Notary Public but merely states
that a Notary Public in Nigeria will perform the work that a Notary
Public in England performs. Justice Niki Tobi, captures this gap in
his judgment at the Supreme Court of Nigeria in the case BUHARI V.
INEC & ORS (2008) LPELR-814(SC), where he held; “Although the
Notaries Public Act does not specifically state the duties or
functions of a notary as Section 2(2) of the Act vaguely and lazily
provides that a notary appointed by the Chief Justice of Nigeria
shall perform the same duties and exercise the same functions as a
notary in England, a notary in England performs the function of
administering oaths and attest and certify by his hand and official
seal some categories or classes of documents. As a matter of
practice, notaries in Nigeria perform such functions.”
Power of Attorney and a Notary Public:
Generally, an agreement can be oral or written and there is no
special paper or font size for agreements in Nigeria. Also, there
is no need for an agreement to be registered in a court, for the
agreement to be valid. A power of attorney is an authority/consent
given by any person to anyone to do or not to do anything on behalf
of the giver of such consent. However, a federal law in Nigeria
(the Evidence Act 2011) has a special interest on an agreement that
is a Power of Attorney.
Back to the Evidence Act, the law assumes that a power of
attorney that is executed (signed) before a Notary Public and
authenticated by the Notary Public is truly a power of attorney
made by the donor (maker) or parties that their names and
signatures appear as the makers of the power of attorney. This is
one of the few circumstances were the courts in Nigeria allow
presumptions. The presumption is valid and conclusive unless and
until there is a rebuttal (contrary) evidence to dislodge such
presumption.
The courts in Nigeria presume that a power of attorney executed
before a Notary Public and authenticated by the Notary Public is
truly made by the person or persons who signed as the makers of the
power of attorney. This is understandable, since a Notary Public is
licensed to administer oath to persons in Nigeria and as such,
where persons come to Notary Public to sign a power of Attorney,
the court is safe to presume that the persons truly signed the
power of attorney. After all, a Notary Public is expected to be
centuries away from lies, deceits and fraud. As a matter of fact,
in authentication of documents, a Notary Public is placed on the
same position with a Court Judge, Magistrate, Consul,
Representative of Nigeria or the President of Nigeria.
Well, since there is a saying that “assumption/presumption is
the mother of all mistakes”, the courts in Nigeria are also given
powers to reject and refuse the presumption that a power of
attorney made before a Notary Public was genuinely made by the
parties. So, by this, a court will allow disputants to prove that a
power of attorney was genuinely executed (signed) by the purported
makers.
In a judgment of the Court of Appeal, in the case of CHIEF G.N.
OKOYE v. MR. NONSO DUMEBI (2014) LPELR-24155(CA), Justice Agim,
stated that; “The Supreme Court in MELWANI V FIVE STAR INDUSTRIES
LTD (2002) 1 SC 120 held that a Power of Attorney that is not
executed before the notary public and authenticated by him, will
not be presumed to have been made by the donor and the donor’s
signature will then have to be proved if it is alleged that the
document was not made by the donor.”
Conclusion:
A power of attorney can be written or oral. Where a power of
attorney is written and executed before a Notary Public for Nigeria
and authenticated by the Notary Public, the power of attorney will
be presumed by all courts in Nigeria to have been genuinely signed
and made by its makers. The presence and authentication by a Notary
Public adds this presumption to a power of attorney. Also, note
that the same presumption is enjoyed, where a power of attorney is
executed (signed) before and authenticated by any Court Judge,
Magistrate, Consul, Representative of Nigeria or the President of
Nigeria. So, the effect of Power of Attorney not executed before
and authenticated by a Notary Public is that no court in Nigeria
will presume that the power of attorney was genuinely made by the
maker and as such the signature of the maker has to be proved,
where the makers claim that power of attorney was not made by
him/her.
My authorities, are:
1. Sections 1, 2, 3, 4, 5 and 6 of the Constitution of the
Federal Republic of Nigeria, 1999.
2. Sections 1, 2, 6 of the Notaries Public Act, 1936.
3. Sections 150 and 259 of the Evidence Act, 2011
4. The Judgment of the Supreme Court of Nigeria (on the functions
of Notary Public for Nigeria) in the case of Buhari V. INEC & ORS
(2008) LPELR-814(SC)
5. The Judgment of the Supreme Court of Nigeria (on the effect of
Power of Attorney not Executed before a Notary Public) in the case
of MELWANI V FIVE STAR INDUSTRIES LTD (2002) 1 SC 120
6. The Judgment of the Court of Appeal (on the effect of Power of
Attorney not Executed before a Notary Public) in the case of CHIEF
G.N. OKOYE v. MR. NONSO DUMEBI (2014) LPELR-24155(CA)
7. The Judgment of the Court of Appeal (that agreements need no
court or notary public stamping to be valid) in the case of Okafor
V. Titilope & Ors (2018) LPELR-44385 (CA)
8. Onyekachi Umah, “You Don’t Need To Register Any Agreement In
Courts or With A Notary Public” (LearnNigerianLaws.com, 2 December
2020) <https://learnnigerianlaws.com/you-dont-need-to-register-any-agreement-in-courts-or-with-a-notary-public/[1]> accessed 22 March
2021.
9. Onyekachi Umah, “How To Make Power Of Attorney To Be Genuine And
Acceptable.” (LearnNigerianLaws.com, 16 April 2019) <https://learnnigerianlaws.com/how-to-make-power-of-attorney-to-be-genuine-and-acceptable-daily-law-tips-tip-312-by-onyekachi-umah-esq-llm-aciarb-uk/[2]> accessed 1 December
2020
10. Onyekachi Umah, “Agreements in Nigeria Do Not Require
Signatures of Notaries Public or Magistrates or Court Staff to be
Legal and Binding” (LearnNigerianLaws.com, 13 January 2018)
<https://learnnigerianlaws.com/daily-law-tips-by-onyekachi-umah-esq-tip-121-agreements-in-nigeria-do-not-require-signatures-of-notaries-public-or-magistrates-or-court-staff-to-be-legal-and-binding/[3]> accessed 1 December
2020
11. Onyekachi Umah, “How To Write Agreements (Contracts).”
(LearnNigerianLaws.com, 11 March 2016) <https://learnnigerianlaws.com/how-to-write-agreements-contracts/[4]> accessed 1 December
2020.
12. Onyekachi Umah, “Stamps and Seals of Courts and Commissioners
for Oath Are Not Needed for Agreements To Be Valid.”
(LearnNigerianLaws.com, 8 June 2018) <https://learnnigerianlaws.com/daily-law-tips-by-onyekachi-umah-esq-tip-118-stamps-and-seals-of-courts-and-commissioners-for-oath-are-not-needed-for-agreements-to-be-valid/[5]> accessed 1 December
2020
13. Onyekachi Umah, “Requirements For A Lawyer To Be Appointed As A
Notary Public For Nigeria” (LearnNigerianLaws.com, 3 June 2020)
<https://learnnigerianlaws.com/requirements-for-a-lawyer-to-be-appointed-as-a-notary-public-for-nigeria/[6]> accessed 22 March
2021.
14. Onyekachi Umah, “It Is Not “Notary Public Of Nigeria” But
“Notary Public For Nigeria” (LearnNigerianLaws.com, 30 January
2020) <https://learnnigerianlaws.com/it-is-not-notary-public-of-nigeria-but-notary-public-for-nigeria/[7]> accessed 22 March
2021
15. Onyekachi Umah, “Power Of Attorney Can Not Transfer
Ownership/Title Of A Property” (LearnNigerianLaws.com, 19 July
2018) <https://learnnigerianlaws.com/daily-law-tips-by-onyekachi-umah-esq-tip-145-power-of-attorney-can-not-transfer-ownership-title-of-a-property/?[8]> accessed 22 March
2021
Sabi Law Projects:
#SabiLaw
#DailyLawTips
#SabiBusinessLaw
#SabiElectionLaws
#SabiHumanRights
#SabiLawOnBeatFm
#SabiLawLectureSeries
#CriminalJusticeMonday
#SabiLawVideoChallenge
Speak with the writer, ask questions or make inquiries on this
topic or any other via onyekachi.umah@gmail.com,
info@LearnNigerianLaws.com or +2348037665878 (whatsapp).
To receive free Daily Law Tips, join our free WhatsApp group via
https://chat.whatsapp.com/L7h4f1exItZ38FeuhXG4WN or Telegram group,
via the below link: https://t.me/LearnNigerianLaws
To keep up to date on all our free legal awareness projects of
Sabi Law Foundation, follow us via
Facebook Page:@LearnNigerianLaws,
Instagram: @LearnNigerianLaws, Twitter: @LearnNigeriaLaw and
YouTube: Learn Nigerian Laws
Please share this publication for free till it gets to those
that need it most. Save a Nigerian today! NOTE: Sharing, modifying
or publishing this publication without giving credit to the author
or Sabi Law Foundation is a criminal breach of copyright and will
be prosecuted. This publication is the writer’s view not a legal
advice and does not create any form of relationship. You may reach
the writer for more information.
This publication is powered by www.LearnNigerianLaws.com {A Free
Law Awareness Program of Sabi Law Foundation, supported by the law
firm of Bezaleel Chambers International (BCI).} Sabi Law Foundation
is a Not-For-Profit and Non-Governmental Legal Awareness
Organization based in Nigeria.
For sponsorship and partnership, contact:
sponsorship@learnnigerianlaws.com, sabilaw.ng@gmail.com or +234 903
913 1200.
Daily Law Tips (Tip 762) by Onyekachi Umah, Esq., LL.M,
ACIArb(UK)
Introduction:
Any person in Nigeria can make an agreement for himself or for
another person for free. Agreement can be made in almost any place,
apart from a place that may suggest that a party made an agreement
under force or fraud. However, according to the Nigerian law of
evidence, there is a special position for a power of attorney
executed before and authenticated by a Notary Public for
Nigeria.
Notaries Public and their Functions:
The Notary Public For Nigeria is an office reserved only for fit
and proper senior legal practitioners. Such legal practitioners are
appointed by the Chief Justice of Nigeria and sworn-in by Chief
Judges of the states where the legal practitioners practice. A
Notary Public in Nigeria performs all the duties of a Notary Public
in England and is an officer of the Supreme Court of Nigeria. The
duties here, include; certification of documents and administration
of oaths.
Unfortunately, the Notaries Public Act in Nigeria, failed to
specifically list the functions of Notary Public but merely states
that a Notary Public in Nigeria will perform the work that a Notary
Public in England performs. Justice Niki Tobi, captures this gap in
his judgment at the Supreme Court of Nigeria in the case BUHARI V.
INEC & ORS (2008) LPELR-814(SC), where he held; “Although the
Notaries Public Act does not specifically state the duties or
functions of a notary as Section 2(2) of the Act vaguely and lazily
provides that a notary appointed by the Chief Justice of Nigeria
shall perform the same duties and exercise the same functions as a
notary in England, a notary in England performs the function of
administering oaths and attest and certify by his hand and official
seal some categories or classes of documents. As a matter of
practice, notaries in Nigeria perform such functions.”
Power of Attorney and a Notary Public:
Generally, an agreement can be oral or written and there is no
special paper or font size for agreements in Nigeria. Also, there
is no need for an agreement to be registered in a court, for the
agreement to be valid. A power of attorney is an authority/consent
given by any person to anyone to do or not to do anything on behalf
of the giver of such consent. However, a federal law in Nigeria
(the Evidence Act 2011) has a special interest on an agreement that
is a Power of Attorney.
Back to the Evidence Act, the law assumes that a power of
attorney that is executed (signed) before a Notary Public and
authenticated by the Notary Public is truly a power of attorney
made by the donor (maker) or parties that their names and
signatures appear as the makers of the power of attorney. This is
one of the few circumstances were the courts in Nigeria allow
presumptions. The presumption is valid and conclusive unless and
until there is a rebuttal (contrary) evidence to dislodge such
presumption.
The courts in Nigeria presume that a power of attorney executed
before a Notary Public and authenticated by the Notary Public is
truly made by the person or persons who signed as the makers of the
power of attorney. This is understandable, since a Notary Public is
licensed to administer oath to persons in Nigeria and as such,
where persons come to Notary Public to sign a power of Attorney,
the court is safe to presume that the persons truly signed the
power of attorney. After all, a Notary Public is expected to be
centuries away from lies, deceits and fraud. As a matter of fact,
in authentication of documents, a Notary Public is placed on the
same position with a Court Judge, Magistrate, Consul,
Representative of Nigeria or the President of Nigeria.
Well, since there is a saying that “assumption/presumption is
the mother of all mistakes”, the courts in Nigeria are also given
powers to reject and refuse the presumption that a power of
attorney made before a Notary Public was genuinely made by the
parties. So, by this, a court will allow disputants to prove that a
power of attorney was genuinely executed (signed) by the purported
makers.
In a judgment of the Court of Appeal, in the case of CHIEF G.N.
OKOYE v. MR. NONSO DUMEBI (2014) LPELR-24155(CA), Justice Agim,
stated that; “The Supreme Court in MELWANI V FIVE STAR INDUSTRIES
LTD (2002) 1 SC 120 held that a Power of Attorney that is not
executed before the notary public and authenticated by him, will
not be presumed to have been made by the donor and the donor’s
signature will then have to be proved if it is alleged that the
document was not made by the donor.”
Conclusion:
A power of attorney can be written or oral. Where a power of
attorney is written and executed before a Notary Public for Nigeria
and authenticated by the Notary Public, the power of attorney will
be presumed by all courts in Nigeria to have been genuinely signed
and made by its makers. The presence and authentication by a Notary
Public adds this presumption to a power of attorney. Also, note
that the same presumption is enjoyed, where a power of attorney is
executed (signed) before and authenticated by any Court Judge,
Magistrate, Consul, Representative of Nigeria or the President of
Nigeria. So, the effect of Power of Attorney not executed before
and authenticated by a Notary Public is that no court in Nigeria
will presume that the power of attorney was genuinely made by the
maker and as such the signature of the maker has to be proved,
where the makers claim that power of attorney was not made by
him/her.
My authorities, are:
1. Sections 1, 2, 3, 4, 5 and 6 of the Constitution of the
Federal Republic of Nigeria, 1999.
2. Sections 1, 2, 6 of the Notaries Public Act, 1936.
3. Sections 150 and 259 of the Evidence Act, 2011
4. The Judgment of the Supreme Court of Nigeria (on the functions
of Notary Public for Nigeria) in the case of Buhari V. INEC & ORS
(2008) LPELR-814(SC)
5. The Judgment of the Supreme Court of Nigeria (on the effect of
Power of Attorney not Executed before a Notary Public) in the case
of MELWANI V FIVE STAR INDUSTRIES LTD (2002) 1 SC 120
6. The Judgment of the Court of Appeal (on the effect of Power of
Attorney not Executed before a Notary Public) in the case of CHIEF
G.N. OKOYE v. MR. NONSO DUMEBI (2014) LPELR-24155(CA)
7. The Judgment of the Court of Appeal (that agreements need no
court or notary public stamping to be valid) in the case of Okafor
V. Titilope & Ors (2018) LPELR-44385 (CA)
8. Onyekachi Umah, “You Don’t Need To Register Any Agreement In
Courts or With A Notary Public” (LearnNigerianLaws.com, 2 December
2020) <https://learnnigerianlaws.com/you-dont-need-to-register-any-agreement-in-courts-or-with-a-notary-public/[1]> accessed 22 March
2021.
9. Onyekachi Umah, “How To Make Power Of Attorney To Be Genuine And
Acceptable.” (LearnNigerianLaws.com, 16 April 2019) <https://learnnigerianlaws.com/how-to-make-power-of-attorney-to-be-genuine-and-acceptable-daily-law-tips-tip-312-by-onyekachi-umah-esq-llm-aciarb-uk/[2]> accessed 1 December
2020
10. Onyekachi Umah, “Agreements in Nigeria Do Not Require
Signatures of Notaries Public or Magistrates or Court Staff to be
Legal and Binding” (LearnNigerianLaws.com, 13 January 2018)
<https://learnnigerianlaws.com/daily-law-tips-by-onyekachi-umah-esq-tip-121-agreements-in-nigeria-do-not-require-signatures-of-notaries-public-or-magistrates-or-court-staff-to-be-legal-and-binding/[3]> accessed 1 December
2020
11. Onyekachi Umah, “How To Write Agreements (Contracts).”
(LearnNigerianLaws.com, 11 March 2016) <https://learnnigerianlaws.com/how-to-write-agreements-contracts/[4]> accessed 1 December
2020.
12. Onyekachi Umah, “Stamps and Seals of Courts and Commissioners
for Oath Are Not Needed for Agreements To Be Valid.”
(LearnNigerianLaws.com, 8 June 2018) <https://learnnigerianlaws.com/daily-law-tips-by-onyekachi-umah-esq-tip-118-stamps-and-seals-of-courts-and-commissioners-for-oath-are-not-needed-for-agreements-to-be-valid/[5]> accessed 1 December
2020
13. Onyekachi Umah, “Requirements For A Lawyer To Be Appointed As A
Notary Public For Nigeria” (LearnNigerianLaws.com, 3 June 2020)
<https://learnnigerianlaws.com/requirements-for-a-lawyer-to-be-appointed-as-a-notary-public-for-nigeria/[6]> accessed 22 March
2021.
14. Onyekachi Umah, “It Is Not “Notary Public Of Nigeria” But
“Notary Public For Nigeria” (LearnNigerianLaws.com, 30 January
2020) <https://learnnigerianlaws.com/it-is-not-notary-public-of-nigeria-but-notary-public-for-nigeria/[7]> accessed 22 March
2021
15. Onyekachi Umah, “Power Of Attorney Can Not Transfer
Ownership/Title Of A Property” (LearnNigerianLaws.com, 19 July
2018) <https://learnnigerianlaws.com/daily-law-tips-by-onyekachi-umah-esq-tip-145-power-of-attorney-can-not-transfer-ownership-title-of-a-property/?[8]> accessed 22 March
2021
Sabi Law Projects:
#SabiLaw
#DailyLawTips
#SabiBusinessLaw
#SabiElectionLaws
#SabiHumanRights
#SabiLawOnBeatFm
#SabiLawLectureSeries
#CriminalJusticeMonday
#SabiLawVideoChallenge
Speak with the writer, ask questions or make inquiries on this
topic or any other via onyekachi.umah@gmail.com,
info@LearnNigerianLaws.com or +2348037665878 (whatsapp).
To receive free Daily Law Tips, join our free WhatsApp group via
https://chat.whatsapp.com/L7h4f1exItZ38FeuhXG4WN or Telegram group,
via the below link: https://t.me/LearnNigerianLaws
To keep up to date on all our free legal awareness projects of
Sabi Law Foundation, follow us via
Facebook Page:@LearnNigerianLaws,
Instagram: @LearnNigerianLaws, Twitter: @LearnNigeriaLaw and
YouTube: Learn Nigerian Laws
Please share this publication for free till it gets to those
that need it most. Save a Nigerian today! NOTE: Sharing, modifying
or publishing this publication without giving credit to the author
or Sabi Law Foundation is a criminal breach of copyright and will
be prosecuted. This publication is the writer’s view not a legal
advice and does not create any form of relationship. You may reach
the writer for more information.
This publication is powered by www.LearnNigerianLaws.com {A Free
Law Awareness Program of Sabi Law Foundation, supported by the law
firm of Bezaleel Chambers International (BCI).} Sabi Law Foundation
is a Not-For-Profit and Non-Governmental Legal Awareness
Organization based in Nigeria.
For sponsorship and partnership, contact:
sponsorship@learnnigerianlaws.com, sabilaw.ng@gmail.com or +234 903
913 1200.