By Abubakar D. Sani, Esq.
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.
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”.
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.
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