Effect of Power of Attorney Not Executed Before a Notary Public

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By Onyekachi Umah 

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 judgement 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

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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.

The Evidence Act 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 where 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, deceit 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.

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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 judgement of the Court of Appeal, in the case of CHIEF G.N. OKOYE v MR NONSO DUMEBI (2014) LPELR-24155(CA), Agim JCA 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 a 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.

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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 Public Act, 1936.

Sections 150 and 259 of the Evidence Act, 2011.

Judgement 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).

Judgement 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.

Judgement 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).

Judgment of the Court of Appeal (that agreements need no court or Notary Public stamping to be valid) in the case of Okafor vTitilope & Ors (2018) LPELR-44385 (CA).

Onyekachi Umah, LL.M, ACIArb(UK)

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