New Provisions Anticipated to Enhance Access to Notarial Services under Notaries Public Act, 2023

Until recently, the Notaries Public Act, LFN 2004 governed the appointment, roles, and responsibilities of notaries public in Nigeria. On 12 June 2023, President Bola Ahmed Tinubu signed into law, the Notaries Public Act, 2023 (the 2023 Act) which repealed the Notaries Public Act, LFN 2004 (the Repealed Act). Significantly, in line with technological advancements, the 2023 Act provides for digital and remote notarisation of documents.

Notable Provisions
Duties and functions of a Notary Public now clearly set out

Unlike the Repealed Act which simply states that a Notary Public shall perform the same duties and exercise the same functions as a Notary Public in England, thereby requiring that recourse be made to England to determine a Notary Public’s duties and functions, the 2023 Act now expressly sets out the duties and functions of a Notary Public.

The 2023 Act also lists documents that may be notarised by a Notary Public to include birth certificate, school certificate, police clearance certificate, biodata page of international passport, marriage certificate, drivers’ license, foreign documents required to be notarised in Nigeria and affidavits.

Introduction of Electrocnic Register of Notaries Public
The Chief Registrar of the Supreme Court is now required under the 2023 Act to maintain an electronic register of Notaries Public in addition to the physical register in existence. Additional information to be included in the register are the (a) phone numbers and (b) email addresses of every Notary Public. The Repealed Act only provided for the name, address, date of appointment and admission of a Notary Public. The Register under the 2023 Act is to be made available to the public.

Digital Notarisation Allowed
Notaries Public where the situation arises, can now discharge their duties via electronic means and all electronically notarised documents shall be recognised as valid in all Courts within Nigeria. A Notary Public who intends to take advantage of this provision must however register his intention and capability to notarise documents digitally with the Chief Registrar of the Supreme Court and shall be required to register his official digital signature and the form of electronic technology to be used in attaching or associating the electronic notarial signature. The Chief Registrar shall then issue a digital seal to the Notary Public and the digital signature and seal shall be used exclusively for electronic notarial acts.

Since the Chief Registrar will be in custody of digital signatures and seals of notaries public, he qualifies as a data controller under the Nigerian Data Protection Act (NDPA), 2023 and will be required to comply with data protection obligations.

Electronic Notarisation of Electronic Documents
A Notary Public may now perform electronic notarial acts on electronic documents by audio-visual communication for persons in the same or different states as the Notary Public or outside Nigeria. Where electronic notarisation is performed, the Notary Public is also required to prepare and execute an electronic notarial certificate which shall be attached to the notarised document.

The electronic notarisation system used to perform such notarisation (a) must be of sufficient clear audio and video quality to enable the notary and individual to see, hear and speak to each other in real-time via live transmission, (b) should include a means of authentication that reasonably ensures only the proper parties have access to the audio-visual communication, (c) should enable the Notary Public to confirm the identity of the individual through two-factor identification methods and (d) must be capable of recording, storing and accessing electronic recordings and documents on the audio-visual communication. The Notary Public is required to take reasonable steps to ensure that the tangible or electronic record that he notarises is the same record in which the individual made a statement or on which the individual executed a signature.

Section 2 of the 2023 Act sets these out to include (a) witnessing the execution of local and international documents such as sale and purchase agreements, assignments of intellectual property, powers of attorney, deeds, company resolutions, etc., (b) preparing notarial certificate of law and good standing, (c) administering oaths for giving evidence, (d) taking affidavits, declarations and depositions, (e) notarising bills of exchange, (f) obtaining authentication from the Ministry responsible for foreign affairs, (g) noting or certifying transactions relating to bills of exchange and other negotiable instruments, (h) verifying company documents, (i) verifying identity and signature and, (j) performing digital notarisation through electronic means.

Should you have any questions regarding the information in this legal alert, please do not hesitate to contact, Olujoke Aliu.

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Contributor
Dindam Killi – Managing Associate