You Don’t Need To Register Any Agreement In Courts or With A Notary Public.

You Don’t Need To Register Any Agreement In Courts or With A Notary Public.  Daily Law Tips (Tip 707) by Onyekachi Umah, Esq., LL.M, ACIArb(UK)

Introduction:

During my days in the Nigerian Law School, as a student, my teachers always warned us to be ready for the magics of real life legal practise. According to them, there is an ocean of difference between what is taught in the law schools and what is obtainable in real life. Law office attachment and legal practise has proven my teachers very right, starting from the point lawyers take a Deed of Assignment, Tenancy Agreement and Hire Purchase Agreement to court or a Notary Public for authentication (stamping). This work focuses on the increasing ugly practise of sending documents (agreements) to courts and Notary Public for stamping, with the mind that the act validates such agreements.

“Agreement Na Agreement Principle”:

There is a movie (I can’t remember the title now) by the veteran actor -Nkem Owoh (Osuofia)-, wherein the actor insisted that no matter how harsh an agreement may be, the agreement is still an agreement (Agreement Na Agreement Principle). Following the Nkem Owoh’s principle of “Agreement Na Agreement Principle”, once there is an agreement, the agreement is valid between the makers. Let us find out what the Nigerian law says about this principle.

An agreement (contract) can be made orally or in writing. A contract is “legal” when it contains the essentials of a contract which makes it enforceable in court and accords it a legal beam. For example, an agreement made by two adults for the supply of cannabis (Indian hemp), human parts and stolen cars cannot be said to be a Legal Contract in Nigeria. It is surely, not a legal contract because the subject-matters (Indian hemp, human parts and stolen cars) are illegal; hence such a contract can never be enforceable (recognisable) in law.

An agreement can be written on a cartoon, wall, tissue paper, match box, sugar packet or on anything that can accept marks and can be written on. With the federal law on evidence in Nigeria (Evidence Act made in 2011), written agreements can be made through exchange of mobile phone text messages, emails, whatsapp, blackberry pings, yahoo chats, 2go and other electronic devices and platforms.

An agreement can be made by the parties to the agreement, with or without the services of a legal practitioner. In all parts of Nigeria, only legal practitioners have the powers to charge fees and prepare any document relating to rent, tenancy, lease, mortgage, sale, transfer, gift, land, landed property, extracted and not-extracted minerals resources, mines, buildings, structures or relating to probate, letters of administration or any proceedings in court in Nigeria.

When Can An Agreement Be Taken To Court/Notary Public:

An agreement is an agreement and there is no need for an agreement to be registered in court, for the agreement to be valid. However, there are only 2 circumstances where an agreement can be taken to a court or notary public for authentication. The first circumstance is compulsory and it is where any of the parties to an agreement is an illiterate.

Where a party to an agreement is an illiterate, the illiterate must be protected as provided in our laws; Illiterates Protection Laws. Such an agreement must contain a “Jurat”. A  Jurat is an undertaking to be signed be person (Interpreter) other than the parties to the agreement, stating that he/she had read and interpreted the agreement to the illiterate in the language of the illiterate, and that the illiterate appears to have understood it all. This is one of the special contracts, which must be made before a Notary Public or a Commission of Oath.

The last circumstance where a document may be to be taken to court or a notary public is where the document is a “Power of Attorney” and it is optional. A power of attorney may be taken to a court or notary public for the “Power of Attorney” to have a higher evidential value. By evidential value, it means that the courts will presume and refer to the document as properly made and signed unless proven otherwise, so far as it is stamped (authenticated) by a notary public or any court, judge, magistrate, consul, representative of Nigeria or the President of Nigeria.

Conclusion and Recommendation:

It is advisable to always engage the services of a legal practitioner. Conflict avoidance is cheaper than conflict resolution and that is the reason a lawyer is need at the earliest stage of any negotiation or agreement. It is important to point out that a land transaction in Nigeria cannot be complete and be valid without the stamp and approval of the Governor of the state where the land is located. This has led many people to mistake the mere irrelevant and unnecessary stamps and stamping they receive in courts from court staff and clerks as well as from Notary Public as the needed government approval for land transaction. Approval, stamping and certification of land transaction can only be done by the Governor of a State, the Minister of the Federal Capital Territory, Abuja or any person they delegate such powers to, often the Commissioners for Lands and their equivalents.

Nigerian lawyers owe a duty to Nigerians and their clients; to always be faithful even in advices. There is no need for the growing ugly practise of having all kinds of documents and agreements (excluding Power of Attorney) being sent to courts and Notaries Public for stamping. Deceit is a professional misconduct!

My authorities, are:

  1. Sections 1, 2, 3, 4, 5 and 6 of the Constitution of the Federal Republic of Nigeria, 1999.
  2. Sections 2, 22(1)(d), 22(2), 22(4), 22(5), 22(6), 22(7), 24 and 25 of the Legal Practitioners Act, 1975.
  3. Sections 150 and 259 of the Evidence Act, 2011
  4. Sections 1, 5, 8, 9, 10, 11, 12, 21, 22, 23, 26, 28, 29, 33, 38, 39, 42, 43, 44, 47,51, 52,  of the Land Use Act, 1978
  5. Section 2 of Illiterates Protection Act, Laws of Nigeria (Abuja)
  6. The Judgment of the Supreme Court of Nigeria (on whether Memorandum of Understanding is binding or not) in the case of BPS CONSTRUCTION & ENGINEERING COMPANY LIMITED v. FEDERAL CAPITAL DEVELOPMENT AUTHORITY (2017) LPELR-42516(SC)
  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. The judgment of the Court of Appeal (on whether Memorandum of Understanding is binding or not) STAR FINANCE & PROPERTY LTD. & ANOR v. NIGERIAN DEPOSIT INSURANCE CORPORATION (2012) LPELR-8394(CA)
  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/> 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/> accessed 1 December 2020
  11. Onyekachi Umah, “Memorandum Of Understanding (Mou) Is Not A Binding Agreement(Contract).” (LearnNigerianLaws.com, 11 February 2020) <https://learnnigerianlaws.com/memorandum-of-understanding-mou-is-not-a-binding-agreementcontract-daily-law-tips-tip-502-by-onyekachi-umah-esq-llm-aciarbuk/> accessed 1 December 2020.
  12. Onyekachi Umah, “How To Write Agreements (Contracts).” (LearnNigerianLaws.com, 11 March 2016) <https://learnnigerianlaws.com/how-to-write-agreements-contracts/> accessed 1 December 2020.
  13. 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/> accessed 1 December 2020

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