THE LEGAL FRAMEWORK FOR THE AUTHENTICATION AND SERVICE OF LEGAL AND OFFICIAL DOCUMENTS BY INDIVIDUALS AND CORPORATE ENTITIES IN NIGERIA

 1. Introduction

The legal framework for the authentication and service of legal and official documents by individuals and corporate entities in Nigeria is a critical aspect of private and public interactions in Nigeria. It encompasses the laws, regulations, and procedures that govern how documents are authenticated, verified, and served in both personal, official and corporate contexts. This legal framework ensures the validity and recognition of documents, whether for domestic or international use, and includes various statutory provisions, judicial interpretations, and administrative practices.

Key components of this legal framework include the Companies and Allied Matters Act (CAMA) 2020, the Evidence Act 2011 and its 2023 amendment and other relevant statutes, regulations and guidelines issued by governmental and professional authorities, case laws and international best practices.

This paper highlights and discusses the meaning of legal and official documents, who can authenticate a legal and official document, importance of authenticating and service of these type of documents, various methods/manner of authentication. It concludes with the discussion of the methods for service of these documents by individuals and corporate entities.

1.1 Conceptual Definition

The terms “Legal” and “official” documents often overlap, but they have distinct meaning and uses.

Legal documents are written or electronic records that are used to assert, define a contractual relationship, or record legal rights and obligations.[1] They are typically used within the legal system to conduct legal transactions, proceedings or business. Examples include contracts, deeds, wills, mortgages, court orders and judgement, affidavits, legal opinions and briefs, to mention a few.

Official documents on the other hand are written or electronic records issued by an authority such as government agency, corporation or institution. These documents are typically used to verify identity, status, or compliance with regulations. Examples are International Passports and National ID cards, birth, marriage, educational (transcripts), death and other government issued certificates, Tax documents and financial statements, corporate resolutions, corporate meeting minutes[2] etc.

Note: Not all official documents are legal, but all Legal documents are official.

1.2 Who can Authenticate a Document?

 For any document to be valid, one of the criteria under the Law is the capacity of the authenticator. In what capacity is the person contracting or authenticating such document? Is it as a minor? does the person possess a sound disposing mind? Is the person adjudged to be an illiterate or bankrupt? Has he been disqualified from contracting by any law to which he is subject? The listed evaluation criteria also apply to a corporate entity.

Under common law, an individual must be 21 years old before they can enter binding contracts, however, with the exception that a minor can contract for necessaries.[3] But with statutory enactments comes modified age of majority now becoming 18 years old.[4]

The extant position of the law in Nigeria and in most common law-based jurisdictions is that persons of 18 years old and above who possesses a sound disposing mind can enter any contract using their legal name and details and such authentication may be seen as valid.

 As a Corporate entity: A company is a juristic or artificial person that may act through any of its officers, authorized agents[5], Secretary or Directors (see section 87 of CAMA 2020)

 Sole Proprietorship, through its proprietor acting for the entity or business.

 Partnership: Through any or all its partners.

 Incorporated Trustee: Through any or all of its trustees.

Persons with Disability: By their guardian ad litem; illiterate Jurat for an illiterate.

1.3 Mode/Way of Authentication by Individuals or Corporate Entities.

The manner of authentication of legal documents varies across different sectors and types of transactions. While ‘signature’ of the parties is enough to authenticate some transactions, some transactions need further verifications and specifically approved signature. Here are some examples:

1. Financial Services: Authentication in the financial services sector often requires specific identifiers to verify the identity of individuals and entities. - E.g. Account Opening Signature Specimen, Bank Verification Number (BVN) is used to authenticate individuals in banking transactions. - likewise, the National Identification Number (NIN) is used for broader identity verification in financial services transaction.

2. Real Estate Transactions: Authentication of documents in real estate transactions often requires signature of the parties and Government-issued ID: Such as a passport, NIN or driver's license, to verify the identity of the parties.

3. Legal/Court Processes: Legal documents and court processes require the maker’s signature, witness signatures for some document and sometimes notarization by a Commissioner for Oath/Notary Public.[6] For purpose of signature which can be a sign, mark, inscription, name or combination of name and number, see the case of Nnalimuo v Elodumuo (2018) 8 NWLR (Pt. 1622) 549.

4. Legal Practitioners practicing law in Nigeria are required to comply with Rules 8(2) and 10 of the Rules of Professional Conduct 2023 when authenticating a court process to be filed in any court of law in Nigeria. Other professional bodies such as ICAN, COREN, ANAN usually would require members to write their registration numbers when authenticating a document in their professional capacity.

1.4 Importance of Authenticating and Service of Legal and Official Documents by Individuals and Corporate Entities.

After incorporation, a company takes on its legal form. It can enter into agreement with any person/organization, and as such becomes vested to sue and also be sued just like natural persons. However, for a company to enter into any form of agreement or transaction such must be in accordance with the law and its MEMART (Memorandum and Articles of Association). For instance, See Section 95(1) (a)-(c) which talks on the Forms of Contract and Section 87 & 89 of the CAMA 2020 which talks on the Liability for acts of the Company.

Under Section 98 of the CAMA 2020, a Company/Corporate entity is no longer mandated or required to maintain or keep a corporate seal. However, transactions required to be made by way of a deed, still need to comply with such legal requirements.

It is therefore pertinent for both Individuals and Corporate entities to exercise caution when authenticating a legal and official document as such document may be legally binding, enforceable and or actionable against the maker.

a.     Importance Of Authenticating

This process gives life to the document as a document is worthless unless it is authenticated and signed by the maker or intended party.  Proper authenticating confers the following benefits - (i) Validity and Legitimacy (ii) Enforceability (iii) Clarity and Precision (iv) Prevention of fraud (v) Protection of Rights (vi) Use for Compliance and Dispute Resolution (vii) International Recognition.

b.      Authentication of Legal and Official Documents

Authentication is the act of proving that something (as a document) is true or genuine, especially so that it may be admitted as evidence, or the condition of being so proved; or the assent to or adoption of a writing as one’s own”- Leadership News Group Ltd v. Mantu (2017) 2NWLR (Pt 1548)15 (p.54, para-G).

It should be noted that the signature on any document by a party is prima facie evidence that such document is valid unless proven otherwise. See Enemchukwu v Okoye (2017) 6NWLR (PT 1560)37

c.      Relevant Legislations on Authentication

1.     Evidence (Amendment)Act 2023: - This amendment of the Evidence Act of 2011 provides for the use of electronic and digital signatures. Section 84C-84D of the Evidence (Amendment) Act 2023, outlines the requirements for the authentication of electronic records. See also Kubor v. Dickson (2013) 4 NWLR (Pt 1345) 534 p. 425 paras. E-F.

Significantly, the legal framework in Nigeria now recognizes the use of E-Affidavit by virtue of section 108(2) of Evidence (Amendment) Act 2023.

2.     Companies and Allied Matters Act (CAMA) 2020: - It is no longer mandatory for a company to have a common seal. Section 101 &102 of the Act now regulates the authentication of corporate documents.

3.     Electronic Transactions (Amendment) Act 2020: Also facilitates and recognizes the validity of electronic signatures and service of documents electronically. See section 27 of the Act.

4.     Notaries Public Act, 2023: Recognition and authentication of electronic/digitally notarized documents by virtue of section 6, 7 and 8 of the Act.

5.     The Federal High Court by way of a Practice Direction 2024 which commenced on 1st July 2024 - introduces Electronic Affidavit for the benefit of litigants and other users.

1.5 Service of Legal and Official Documents

a) Method of service

For any document to be properly served by an individual or corporate entity, such may either be done by:

1.     Personal Service

2.     Substituted service

3.     Electronic service

4.     Service by Post 

5.     Delivery of the processes to its corporate or registered office or any of its serving director, secretary or other principal officer of the Company. See Section 104 of CAMA 2020 and also M.T.N Ltd v. Bolingo Hotels Ltd (2004) 13 NWLR (PT 889) 125

b) Proof of Service

This is crucial to demonstrate that the document has been properly served.

1.     Bailiff or other officer of the court- Completed acknowledge form

2.     Solicitor:  Acknowledgement of service attached to an affidavit of service.

3.     Courier Company: Acknowledgement form.

4.     Electronic delivery receipts.

c)    Importance of Proper Service

This includes (i) Due Process and Fairness by putting other party on Notice[7] (ii) Establishing Jurisdiction (iii) Timely Notification (iv) Enforceability of Court Order (v) Record Keeping and Proof (vii) Avoidance of Default Judgment.

Conclusion 

Authenticating and serving legal documents are fundamental processes that ensure the integrity, validity, and enforceability of legal transactions and proceedings. They uphold legal standards, protect against fraud, and ensure that all parties are properly informed and able to participate in legal matters. The authentication and service of legal and official documents are governed by several legislations in Nigeria. Proper adherence to these laws ensures the validity and enforceability of such documents.

QUALIFICATIONS AND DISCLAIMERS: This Publication of the law firm of NWOYE (Barristers & Solicitors) is prepared strictly for informational purposes. It should not be relied upon or serve as a substitute for proper legal advice. Counsel will not be held liable for any action or inaction that is premised strictly on this paper.  Thank you to Mr. Anthony Falbo (JD Law Student at Case Western Reserve University, Cleveland, State of Ohio, USA) for his US and Foreign Law (International Best Practices) contribution to this publication. Anthony is currently working with the law firm as a Remote Legal Intern under the Virtual Internship Programme.

For Further Information, Please Contact –

1.   Mr. Ikemefuna Stephen Nwoye – Lead Partner  

2.  Mr. Onyeachonam Bernard Omeji – Associate Partner    

3.  Miss Similoluwa Bolarinwa Adekanye – Legal Associate

References

[1] For the meaning of Documents see Section 258(1) of the Evidence Act 2011, Dickson v. Sylva (2017) 8 NWLR (Pt. 1567) 167 (Pp. 232-233, paras. G-A), Oduah v. F.R.N. (2012) 11 NWLR (Pt. 1310) 76 (P. 103, para. A-B). Legal documents are provided for under Rule 10(2) of the Rules of Professional Conduct 2023.

[2]  Onagoruwa v. I.G.P (1991) 5 NWLR (Pt. 193) 593 (P. 644, paras. D-E); see Section 106 of the Evidence Act 2011 which is also instructive on the proof of official documents. For instance, under US Law, Rule 902 (5) of the Rules of Evidence provides for Evidence that is self-authenticating. These are – (i) Domestic Public Documents that are Sealed and Signed (ii) Domestic Public Documents that are not sealed but are signed and certified (iii) foreign public documents and (iv) certified copies of public records (v) official publications (vi) Newspapers and periodicals (vii) Trade Inscriptions and the like (viii) Acknowledged Documents etc.

[3]  Arthur Peters v. Robert Fleming (1840) 151 ER 314; see also Section 18(2) of the Child’s Right Act 2003

[4] See Section 277 of the Child’s Right Act 2003, Section 252 of Companies and Allied Matters Act, 2020. In the United Kingdom, the Births and Deaths Registration Amendment Act (No 1 of 2002) reduced the age of majority from 21 years to 18 years. Prior to this Act of Parliament, there was the Family Law Reform Act 1969.

[5] Sec 90 of CAMA 2020

[6] see Section 7 & 8 of the Notaries Public Act, 2023

[7] Few exceptions like Ex parte Proceedings. It should be noted that ex parte proceedings are strongly discouraged because they infringe on the right to fair hearing as guaranteed under Section 36 of the Constitution of the Federal Republic of Nigeria 1999.