LEGAL PRINCIPLE: EVIDENCE LAW — Presumptions — Power of Attorney Executed Before Notary Public — Section 118 of the Evidence Act — Not Exclusive Means of Proof
PRINCIPLE STATEMENT
Compliance with Section 118 of the Evidence Act is one way of proving a power of attorney, but not the only way; the presumption of due execution does not exclude other means of proof, and failure to comply does not invalidate the power of attorney.
RATIO DECIDENDI (SOURCE)
Per Ayoola, JSC, in Melwani v. Five Star Industries Ltd (2002) NLC-151994(SC) at pp. 22–23; Paras C–D.
"Compliance with the provisions of section 117 (now section 118) of the Evidence Act is one of the ways of proving the execution and authentication of a power of attorney, but on no reading of that section can it be said that it is the only way. Presumption of due execution and authentication raised by section 117 dispenses with the need to prove these facts but it does not exclude other means of proof. That execution and authentication of a document which purports to be a power of attorney cannot be presumed in terms of section 117 does not mean that the power of attorney is invalid."
EXPLANATION / SCOPE
Section 118 of the Evidence Act provides a presumption of due execution for powers of attorney executed before a notary public. However, this is not the exclusive method of proof. The power of attorney may be proved by other evidence, such as calling the attesting witnesses or proving the signature. The presumption merely dispenses with the need for proof; its absence does not invalidate the document. The principle ensures that powers of attorney are not rendered ineffective due to technical non-compliance with the presumption provision. The court will accept other satisfactory evidence of execution. The rule promotes substance over form. The burden of proving execution remains on the party relying on the document.