By Abubakar D. Sani, Esq.
This provocative question is prompted by the continuing controversy over the order (now withdrawn) made by a Nigerian lawyer, one Anthony Eruaga, which he issued in his capacity as a notary public, in the course of a quasi-judicial proceedings which he presided over as something akin to a judicial officer. To the extent that the relevant statute under which he (and all notaries public) were appointed is the Notaries Public Act(“the NPA”), attention ought, naturally, to shift to this law, in terms of its validity.
This is because, the NPA was made in 1936 (reviewed in 1955). Accordingly, for the law to take effect under Section 315(1)(a) of the Constitution (as an ‘existing law’), its subject matter must be one in respect of which the National Assembly is competent to make laws – vide Section 4(3) & (4) of the Constitution. The question is: What is the subject matter of NPA, and is the National Assembly competent to legislate thereon? Before answering these questions, however, it is pertinent to ask another question, namely:
Who is a Notary Public?
Across the world, the conventional practice is to accept certain documents which emanate from other countries only if such documents are authenticated or verified by a so-called ‘Notary Public’. The class and purpose of such documents vary widely, from declarations to affidavits (oaths), deed, notes, bills of exchange, marine protests, etc. A notary thus gives such documents credit and authenticity especially in foreign jurisdictions. See Blacks’ Law Dictionary, 8th edition. The Hague Convention gives international recognition to the office and seal of a notary.
Notaries under the 1999 Constitution
Apart from Item 49 of the Exclusive Legislative List of the 1999 Constitution (which deals with professional occupations generally) nothing in the Constitution specifically empowers the Chief Justice (or anybody else, for that matter) to appoint notaries public. Accordingly, as previously stated, having regard to the provisions of Section 315(1)(a) of the Constitution, unless the subject matter of the NPA is one in respect of which the National Assembly is competent to make laws, the Act might be unconstitutional. This calls for a closer look at the provisions of Item 49 of the Exclusive Legislation List of the Constitution.
As previously stated, they merely empower the National Assembly to legislate upon such professional occupations as the Assembly might designate. By virtue of Paragraph 1 of Part III of the Second Schedule to the Constitution, such designation is to be indicated either through an Act or a resolution passed by the Assembly. Is notarisation of documents a professional occupation, and if so, has the National Assembly designated it as such? That is the question. The answer seems to be an unequivocal ‘No’, at least if the words of Item 49 of the Constitution are to be given their plain, literal and grammatical construction.
I am certainly unaware of any resolution or Act of the Assembly by which it designated notarisation of documents as such, eo nomine. Is this the end of the matter – and, of the road – for that practice and its practitioners in Nigeria? Not if we can possibly save it, at least under the ut res magis valeat quam pereat rule of statutory interpretation. This means “to give effect to a matter rather than have it fail”. See Blacks’ Law Dictionary, 8th edition, page 1583. Does the NPA have any saving grace anywhere, either in the Constitution or within itself? That is the question. In my opinion, the NPA’s hope lies on a most liberal – and the broadcast possible – construction of both Item 49 of the Exclusive Legislative List and, perhaps, Sections 232, 233 and 234 of the Constitution.
The former has already been examined, above. Perhaps, it can be argued that, to the extent that only legal practitioners can be appointed notaries (vide Section 2(1) of the NPA), the National Assembly’s designation of legal practice as a profession (vide the Legal Practitioners Act) implicitly (or, presumably) applies to notaries public. This might be plausible but, I believe it is tenuous, because of the obvious fact that not all legal practitioners are notaries public. As for Sections 232, 233 and 234 of the Constitution, they provide as follows, respectively:
- Section 232(1): “The Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any dispute between the Federation and a State or between States if and in so far as that dispute involves any question (whether law or fact) on which the extent of a legal right depends”;
(2): “In addition to the jurisdiction conferred upon it by subsection (1) of this Section, the Supreme Court shall have such original jurisdiction as may be conferred upon it by any Act of the National Assembly: provided that no original jurisdiction shall be conferred upon the Supreme Court with respect to any criminal matter”;
- Section 233(1): “The Supreme Court shall have jurisdiction, to the exclusion of any other court of law in Nigeria, to hear and determine appeals from the Court of Appeal”;
- Section 234: “For the purpose of exercising any jurisdiction conferred upon it by this Constitution or any law, the Supreme Court shall be duly constituted if it consists of not less than five justices of the Supreme Court . . . ”
Contrary to the foregoing provisions, the NPA purports to empower the Chief Justice of Nigeria, and individual Justices of the Supreme Court, as follows:
- To appoint a person as a notary public (the CJN, vide Section 2 (1) of the NPA);
- To suspend a notary public, pending a reference to, and the decision by the Supreme Court, of any complaint against the said notary (any Justice of the SC, vide Section 9 of the NPA);
- To suspend a notary from practicing for a specified period or to order his name to be struck off the register (the Supreme Court – vide Section 8 of the NPA);
The powers conferred upon the apex court by Sections 7 and 8 of the NPA are to be exercised by any three Justices of the court sitting together – Section 10 (1) of the NPA; with the decision of their majority being the decision of the court: Section 10 (2) of the NPA.
Crucially, there is no provision in the Constitution which authorizes the National Assembly to empower the CJN to single-handedly appoint a notary public in Nigeria. This is odd, in my view, as even Senior Advocates of Nigeria are not appointed in that manner, but rather, by a body – the Legal Practitioners Privileges Committee – which, admittedly is, headed by the CJN. I posit that there is no reason why this sort of discrimination ought to exist between two ranks, both of which are, evidently privileges. To the extent that it does, I believe that it violates the right equal protection of the law under Article III(2) of the African Charter on Human and Peoples Rights, 1981. See N.N.P.C. vs. FAWEHINMI (1998) 7 NWLR pt. 559 pg. 598 @ 616, C.A.
Conclusion and Recommendations
To my mind, it is a tacit recognition that notarisation of documents is not ordinarily part of the duties or functions of legal practitioners that necessitated the creation of what is, evidently, the legal fiction of notaries public in the first place. I posit that notarization of documents is virtually a profession-within-a profession (or, a pseudo-profession, if you like) – albeit in all but name. To the extent that the Constitution requires the prior designation of such occupation by the National Assembly as a condition precedent to the validity of any attempt by the Assembly to regulate it through legislation, I submit that its absence simply means that such services are being carried on in Nigeria presently in something of a legal black-hole.
This is all the more so, in my view, because the regulation of notaries (under the NPA) is, itself, problematic, as neither the CJN nor any other Justice(s) of the Supreme Court, have the power, under the Constitution, to appoint notaries or to exercise original or appellate disciplinary jurisdiction over them, eo nomine – either sitting alone or as a three-member court. I believe the irresistible conclusion from the foregoing is that the NPA is anomalous, if not outrightly invalid, null and void. Accordingly, the National Assembly will have to re-visit it, in my view, either by expressly declaring that the Legal Practitioners Act (“LPA”) (and, by extension, the Legal Practitioners, Rules of Professional Conduct) applies to notaries public (preferably) or, by designating notarization of documents as a profession (somewhat far-fetched); and, secondly, by empowering:
- the Legal Practitioners Privileges Committee to appoint notaries public; and
- the Legal Practitioners Disciplinary Committee to sanction them – at least in the first instance. As it stands, the apex court simply lacks that capacity – under the Constitution. This cannot but be the case, because, for the court to do so – under the cover of the NPA – would be a flagrant constitutional violation.
Written By Abubakar D. Sani, Esq.,
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