Who Can Discipline Notaries Public: CJN Or LPDC?

By Abubakar D. Sani, Esq.

Introduction

The last appears not to have been heard of the ‘Eruaga Saga’,
notwithstanding his withdrawal of the ‘reversal order’ which he
purportedly issued two weeks ago, in his capacity as a notary
public in a supposedly judicial proceedings between a commercial
bank and a customer. It will be recalled that Mr. Idosani Eruaga –
who is also a legal practitioner – handed down the edict whilst
sitting in the so-called “Abuja Judicial Division of the
Notaries Public of Nigeria”.

This prompted the intervention of the Nigeria Bar Association,
which has reportedly resolved to investigate whether, indeed, he
possessed the power which he purported to exercise. But this, in my
view, might be problematic, because it is not altogether clear
whether the NBA itself is not about to commit the same offence
which it is trying to investigate, i.e., to exercise a
power/function which it lacks. In saying this, it must pointed out,
from the onset, that no law in Nigeria (certainly not the
Notaries Public Act, 1936) empowers a notary
public to exercise judicial functions or resolve disputes in the
hallowed way which the law recognizes.

Statutory Over-view

This is the million naira question thrown up by the NBA’s
decision to interrogate Mr. Eruaga’s ‘order’. There is no doubt
that, to the extent that he is a legal practitioner, Mr. Eruaga is
ordinarily subject to the disciplinary remit and structures of the
Legal Practitioners Rules of Professional Conduct and the
Legal Practitioners Disciplinary Committee,
respectively.

This, indeed, is the case with all legal practitioners in
Nigeria, except those who have made the transition to the Bench,
either as Judges or Magistrates/Khadis. What about notaries public?
Who can indict them for misconduct committed in the course of their
work? I believe the answer is contained, not so much in the
Legal Practitioners Rules of Professional Conduct
(or even the Legal Practitioners Act),
but in the Notaries Public Act (“the NPA”). This
colonial-era legislation provides in Sections 2, 6, 7, 8,
9, 10 and 15 thereof as follows:

“2(1): The Chief Justice of Nigeria may appoint any fit and
proper person, being a legal practitioner, to be a notary public
for Nigeria”,

“(2): A notary appointed by the Chief Justice of Nigeria
shall perform the same duties and exercise the same functions as a
notary in England”.

“6. Every notary shall be deemed to be an officer of the
Supreme Court”;

“7. If a notary is convicted of any offence, or be adjudged
guilty of any misconduct whether in his capacity as a notary or
otherwise, the court before which he is so convicted or by which he
is so adjudged shall make a report thereof to the Chief Justice of
Nigeria and the Supreme Court may revoke his appointment and direct
the Chief Registrar to remove the name of the notary from the
register”;

“8. In addition to the provisions contained in Section 7 of
this Act, the Supreme Court shall have power, for reasonable cause,
to suspend such notary from practicing during any specified period
or to order his name to be struck off the register”;

“9: Any Justice of the Supreme Court may suspend a notary
temporarily from practising as a notary, pending a reference to and
the decision by the Supreme Court of any complaint against the said
notary”;

“10(1): The powers conferred upon the Supreme Court by
Sections 7 and 8 of this Act shall be exercised by any three
Justices of that court sitting together”;

(2) The decision of the majority of the three justices, in
case they shall not agree on their opinion, shall be taken to be
the decision of the Supreme Court”;

“15. Any notary public or other person who wilfully
certifies or propounds any false statement or document or who
fraudulently withholds or perverts any fact or document pertinent
to the subject of a protest or other notarial act, is guilty of an
offence and liable on conviction, to imprisonment for a term of two
years”.

So much for that. What about the Legal Practitioners
Rules of Professional Conduct? To the extent that they
control the behaviour or official (and not-so-official) conduct of
lawyers in Nigeria, some of the relevant provisions are contained
in Rules 1, 15 and 55 thereof, which provide as
follows, respectively:

“1. A lawyer shall uphold and observe the rule of law,
promote and foster the cause of justice, maintain a high standard
of professional conduct, and shall not engage in any conduct which
is unbecoming of a legal practitioner”;

“15(1): In his representation of a client, a lawyer may
refuse to aid or participate in conduct that he believes to be
unlawful even though there is some support for an argument that the
conduct is legal;

(2) In his representation of his client, a lawyer
shall:

(a) keep strictly within the law notwithstanding any
contrary instruction by his client and, if the client insists on a
breach of the law, the lawyer shall withdraw his service”;

(b) use his best endeavours to restrain and prevent his
client from committing misconduct or breach of the law with
particular reference to judicial officers, witnesses and litigants
and if the client persists in his action or conduct, the lawyer
shall terminate their relations;

(3) In his representation of his client, a lawyer shall
not:

(a) give service or advice to the client which he knows or
ought reasonably to know is capable of causing disloyalty to, or
breach of, the law, or bring disrespect to the holder of a judicial
office, or involving corruption of holders of any public
office;

(c) knowingly advance a claim or defence that is unwarranted
under existing law, but he may advance such claim or defence if it
can be supported by argument in good faith for an extension,
modification or reversal of an existing law”;

(d) fail or neglect to inform his client of the option of
alternative dispute resolution mechanisms before resorting to or
continuing litigation on behalf of his client;

(i) counsel or assist his client in conduct that the lawyer
knows to be illegal or fraudulent; or

(j)knowingly engage in either illegal conduct or conduct
contrary to any of the rules”;

“55(1): if a lawyer acts in contravention of any of the
rules in these Rules or fails to perform any of the duties imposed
by the Rules, he shall be guilty of a professional misconduct and
liable to punishment as provided in the Legal Practitioners Act,
1975”.

Mr. Eruaga and the LPDC: Who blinks
first?

From the above outline of the relevant disciplinary provisions
of the NPA and the LPRPC, it is crystal-clear
that, whilst the former applies specifically to misconduct
allegedly committed by legal practitioners who are notaries public,
the latter only applies to lawyers generally – excluding judges and
magistrates as aforesaid. In other words, the former provisions are
specific, whilst the latter are general. In that case, what is the
legal position? Are both statutory provisions complementary or are
they mutually-exclusive? Should a notary public, like Mr. Eruaga,
be charged with professional misconduct under the LPRPC and/or as a
notary public under the NPA? For the answer to this, we need look
no further than the rule of statutory interpretation expressed in
the maxim; specialia generalibus derogant. This means that
special things derogate from general things; it has been applied
several times by the Supreme Court over the years; a couple of them
will suffice. In ATTORNEY-GENERAL OF THE FEDERATION vs.
ABUBAKAR (2007) All FWLR pt. 375 pg. 405 @ 472E, the apex
court held that “where there are two enactments, one making
specific provisions and the other, general provisions, the specific
provisions are impliedly excluded from the general
provisions”. Similarly, in SCHROEDER & CO. vs. MAJOR &
CO. (1989) 1 NSCC 399 @ 406, the court held that
“where there are two provisions, one special and the other
general, covering the same subject matter, a case falling within
the words of the special provision must be governed thereby and not
by the terms of the general provision”.

Conclusion

From the foregoing, it is clear that it is the
NPA and not the LPRPC – i.e., the Chief
Justice and/or the Supreme Court and not the Legal Practitioners
Disciplinary Committee – that is applicable and has the power,
respectively, to investigate and, possibly sanction Mr. Eruaga.
This, however, depends on the existence or otherwise of a provision
in the English Notaries Public Act (or, a
convention in that jurisdiction) which empowers a notary public to
exercise judicial functions either generally or in certain
specified circumstances – such as, for instance, a judicial strike.
This is because of the explicit dispensation granted in relation to
such situations in Section 2(2) of the NPA as
aforesaid. If such a provision – or those circumstances – exist and
are applicable to those in which Mr. Eruaga issued the said order,
then, all bets are off. In that case, I think it is pretty obvious
who will have the last laugh.

Written By Abubakar D. Sani, Esq.

By Abubakar D. Sani, Esq.

Introduction

The last appears not to have been heard of the ‘Eruaga Saga’,
notwithstanding his withdrawal of the ‘reversal order’ which he
purportedly issued two weeks ago, in his capacity as a notary
public in a supposedly judicial proceedings between a commercial
bank and a customer. It will be recalled that Mr. Idosani Eruaga –
who is also a legal practitioner – handed down the edict whilst
sitting in the so-called “Abuja Judicial Division of the
Notaries Public of Nigeria”.

This prompted the intervention of the Nigeria Bar Association,
which has reportedly resolved to investigate whether, indeed, he
possessed the power which he purported to exercise. But this, in my
view, might be problematic, because it is not altogether clear
whether the NBA itself is not about to commit the same offence
which it is trying to investigate, i.e., to exercise a
power/function which it lacks. In saying this, it must pointed out,
from the onset, that no law in Nigeria (certainly not the
Notaries Public Act, 1936) empowers a notary
public to exercise judicial functions or resolve disputes in the
hallowed way which the law recognizes.

Statutory Over-view

This is the million naira question thrown up by the NBA’s
decision to interrogate Mr. Eruaga’s ‘order’. There is no doubt
that, to the extent that he is a legal practitioner, Mr. Eruaga is
ordinarily subject to the disciplinary remit and structures of the
Legal Practitioners Rules of Professional Conduct and the
Legal Practitioners Disciplinary Committee,
respectively.

This, indeed, is the case with all legal practitioners in
Nigeria, except those who have made the transition to the Bench,
either as Judges or Magistrates/Khadis. What about notaries public?
Who can indict them for misconduct committed in the course of their
work? I believe the answer is contained, not so much in the
Legal Practitioners Rules of Professional Conduct
(or even the Legal Practitioners Act),
but in the Notaries Public Act (“the NPA”). This
colonial-era legislation provides in Sections 2, 6, 7, 8,
9, 10 and 15 thereof as follows:

“2(1): The Chief Justice of Nigeria may appoint any fit and
proper person, being a legal practitioner, to be a notary public
for Nigeria”,

“(2): A notary appointed by the Chief Justice of Nigeria
shall perform the same duties and exercise the same functions as a
notary in England”.

“6. Every notary shall be deemed to be an officer of the
Supreme Court”;

“7. If a notary is convicted of any offence, or be adjudged
guilty of any misconduct whether in his capacity as a notary or
otherwise, the court before which he is so convicted or by which he
is so adjudged shall make a report thereof to the Chief Justice of
Nigeria and the Supreme Court may revoke his appointment and direct
the Chief Registrar to remove the name of the notary from the
register”;

“8. In addition to the provisions contained in Section 7 of
this Act, the Supreme Court shall have power, for reasonable cause,
to suspend such notary from practicing during any specified period
or to order his name to be struck off the register”;

“9: Any Justice of the Supreme Court may suspend a notary
temporarily from practising as a notary, pending a reference to and
the decision by the Supreme Court of any complaint against the said
notary”;

“10(1): The powers conferred upon the Supreme Court by
Sections 7 and 8 of this Act shall be exercised by any three
Justices of that court sitting together”;

(2) The decision of the majority of the three justices, in
case they shall not agree on their opinion, shall be taken to be
the decision of the Supreme Court”;

“15. Any notary public or other person who wilfully
certifies or propounds any false statement or document or who
fraudulently withholds or perverts any fact or document pertinent
to the subject of a protest or other notarial act, is guilty of an
offence and liable on conviction, to imprisonment for a term of two
years”.

So much for that. What about the Legal Practitioners
Rules of Professional Conduct? To the extent that they
control the behaviour or official (and not-so-official) conduct of
lawyers in Nigeria, some of the relevant provisions are contained
in Rules 1, 15 and 55 thereof, which provide as
follows, respectively:

“1. A lawyer shall uphold and observe the rule of law,
promote and foster the cause of justice, maintain a high standard
of professional conduct, and shall not engage in any conduct which
is unbecoming of a legal practitioner”;

“15(1): In his representation of a client, a lawyer may
refuse to aid or participate in conduct that he believes to be
unlawful even though there is some support for an argument that the
conduct is legal;

(2) In his representation of his client, a lawyer
shall:

(a) keep strictly within the law notwithstanding any
contrary instruction by his client and, if the client insists on a
breach of the law, the lawyer shall withdraw his service”;

(b) use his best endeavours to restrain and prevent his
client from committing misconduct or breach of the law with
particular reference to judicial officers, witnesses and litigants
and if the client persists in his action or conduct, the lawyer
shall terminate their relations;

(3) In his representation of his client, a lawyer shall
not:

(a) give service or advice to the client which he knows or
ought reasonably to know is capable of causing disloyalty to, or
breach of, the law, or bring disrespect to the holder of a judicial
office, or involving corruption of holders of any public
office;

(c) knowingly advance a claim or defence that is unwarranted
under existing law, but he may advance such claim or defence if it
can be supported by argument in good faith for an extension,
modification or reversal of an existing law”;

(d) fail or neglect to inform his client of the option of
alternative dispute resolution mechanisms before resorting to or
continuing litigation on behalf of his client;

(i) counsel or assist his client in conduct that the lawyer
knows to be illegal or fraudulent; or

(j)knowingly engage in either illegal conduct or conduct
contrary to any of the rules”;

“55(1): if a lawyer acts in contravention of any of the
rules in these Rules or fails to perform any of the duties imposed
by the Rules, he shall be guilty of a professional misconduct and
liable to punishment as provided in the Legal Practitioners Act,
1975”.

Mr. Eruaga and the LPDC: Who blinks
first?

From the above outline of the relevant disciplinary provisions
of the NPA and the LPRPC, it is crystal-clear
that, whilst the former applies specifically to misconduct
allegedly committed by legal practitioners who are notaries public,
the latter only applies to lawyers generally – excluding judges and
magistrates as aforesaid. In other words, the former provisions are
specific, whilst the latter are general. In that case, what is the
legal position? Are both statutory provisions complementary or are
they mutually-exclusive? Should a notary public, like Mr. Eruaga,
be charged with professional misconduct under the LPRPC and/or as a
notary public under the NPA? For the answer to this, we need look
no further than the rule of statutory interpretation expressed in
the maxim; specialia generalibus derogant. This means that
special things derogate from general things; it has been applied
several times by the Supreme Court over the years; a couple of them
will suffice. In ATTORNEY-GENERAL OF THE FEDERATION vs.
ABUBAKAR (2007) All FWLR pt. 375 pg. 405 @ 472E, the apex
court held that “where there are two enactments, one making
specific provisions and the other, general provisions, the specific
provisions are impliedly excluded from the general
provisions”. Similarly, in SCHROEDER & CO. vs. MAJOR &
CO. (1989) 1 NSCC 399 @ 406, the court held that
“where there are two provisions, one special and the other
general, covering the same subject matter, a case falling within
the words of the special provision must be governed thereby and not
by the terms of the general provision”.

Conclusion

From the foregoing, it is clear that it is the
NPA and not the LPRPC – i.e., the Chief
Justice and/or the Supreme Court and not the Legal Practitioners
Disciplinary Committee – that is applicable and has the power,
respectively, to investigate and, possibly sanction Mr. Eruaga.
This, however, depends on the existence or otherwise of a provision
in the English Notaries Public Act (or, a
convention in that jurisdiction) which empowers a notary public to
exercise judicial functions either generally or in certain
specified circumstances – such as, for instance, a judicial strike.
This is because of the explicit dispensation granted in relation to
such situations in Section 2(2) of the NPA as
aforesaid. If such a provision – or those circumstances – exist and
are applicable to those in which Mr. Eruaga issued the said order,
then, all bets are off. In that case, I think it is pretty obvious
who will have the last laugh.

Written By Abubakar D. Sani, Esq.